Fallen Behind:

Canada’s Access to Information Act

in the World Context

by

Stanley L. Tromp

Forward by Toby Mendel

Preface by Murray Rankin

Copyright © September 2008

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Fallen Behind: Canada’s Access to Information Act in the World Context

Contents Acknowledgements - 5 Forward by Toby Mendel - 6 Preface by Murray Rankin - 8 Summary of Findings - 10

( French version at: www3.telus.net/index100/foi ) Quotes on ATI Act reform - 14 Canadian Conservative party electoral pledges on ATI Act reform, 2006 - 15

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Introduction – The Right to Know - 17

Chapter 1 - The Best Guarantee - 56

The Constitutional Status of FOI: Should the national constitution include the public’s right to know?

Chapter 2 - Foreign Affairs - 63

Who May Apply: Should non-citizens be permitted to use a national FOI law?

Chapter 3 – Achieving Results - 68

Oversight and Enforcement: Should an FOI appellate body have the power to order the release of information? What other powers should it have?

Chapter 4 - Which Players in the Ballpark? - 78

Scope of Coverage: Which public or private entities should be covered by the FOI law?

Chapter 5 - The Raison d’Etre - 107

The Public Interest Override: Is there a public interest override for all or some exemptions in the FOI law?

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Chapter 6 - Blackouts and Whiteouts - 120

Harms Tests, and Time Limits: Are all or some of the exemptions in the FOI law subject to a harms test, and time limits?

Chapter 7 - Private Counsel - 136

Policy Advice: Is the exemption for policy advice in the FOI law too broad?

Chapter 8 – Above the law - 159

Cabinet Records: Should there remain a complete exclusion for cabinet confidences in the Access to Information Act?

Chapter 9 - ‘Let the Record Show…’ - 182

Record Creation and Retention: Are public officials obliged to create records to document their actions, and to preserve the records they create?

Chapter 10 - ‘If it takes forever. . . . ‘ - 208

Response Times: How are response times and delays dealt with in the FOI law?

Chapter 11 - Conflicts of Laws - 222

FOI and Other Laws: Should other laws override an FOI statute on information release for certain subjects, or visa versa?

Chapter 12 - ‘For Immediate Release….’ - 236

Duty to Publish: Must some information be routinely released, or proactively published under the FOI law?

Chapter 13 - Power to the People? - 255

Education and Promotion: Does the FOI law oblige the government to educate the public on its FOI rights, and to promote the FOI process?

Chapter 14 – ‘Everyone’s Business’ - 263

The Environment and FOI: What environmental disclosure rules are set in the FOI law, and is there a separate disclosure law on environmental transparency?

Chapter 15 – Speaking Out - 283

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Whistleblower Protection: Does the FOI law include whistleblower protection, or is there a separate whistleblower protection law?

Chapter 16 – A Regrettable Necessity - 305

Penalties: Are there penalties in the FOI law for officials destroying or falsifying records, delaying or refusing replies to requests, or for other non-compliance?

Chapter 17 - Pushing the Envelope - 316

Miscellaneous Features: Are there any more positive features of other FOI laws and best FOI practices statements that could be adopted in Canada’s ATI Act?

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Appendix 1 - The World FOI Chart, explanatory notes - 322 Appendix 2 – Index of global FOI rulings online, for legal guidance - 324 Appendix 3 - Canadian quasi-governmental entities not covered by the Access to Information Act, as of September 15, 2008 - 334 Appendix 4 - Summaries of notable Canadian news stories based on ATIA requests - 341 Notes on Sources - 357 Selected Bibliography - 381 A note on the author - 393

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Acknowledgements

This report was made possible by the generous support of:

The B.C. Freedom of Information and Privacy Association (FIPA)

The Canadian Newspaper Association (CNA)

The Canadian Association of Journalists (CAJ)

The Canadian Community Newspapers Association (CCNA)

David F. Sutherland Law Corp., Vancouver

Gerald Fahey, Barrister and Solicitor, Vancouver

The views expressed in this Report are those of the author and do not necessarily reflect those of the sponsors.

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This Report is dedicated with gratitude to all Freedom of Information scholars and advocates throughout the world

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I am especially indebted to David Banisar at www.freedominfo.org, Toby Mendel, Article 19, and the Commonwealth Human Rights Initiative, without whose

groundbreaking analysis of FOI statutes and draft bills, this Report and the World FOI Chart would not have been possible.

Thanks to Murray Rankin, John Reid and Maurice Frankel for their helpful comments on

a draft of this report. All responsibility for judgments and errors remains mine.

The Report and Chart are meant as indicators for researchers, not as legal advice of any kind, and we bear no liability for errors, omissions or consequences of using these works.

This Report and Chart may be widely distributed without further permission, but with credit, and without any charge or profit.

© September 2008

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Forword by Toby Mendel When Canada adopted its Access to Information Act in 1982, it joined a small club of about ten nations, mostly from a peer group of Northern Europe and New World countries, with laws granting a right to access information held by public bodies. These countries saw access to information or freedom of information legislation essentially as a governance reform, a means to make government more accountable and more responsive to the needs and demands of citizens. At that time, the idea of access to information had rarely, if ever, been addressed by international organisations, let alone as a human rights issue, and there was nothing in the way of an international movement promoting access to information laws. Today, some 25 years later, the situation is fundamentally different. Depending on how you count, some 75 countries have now adopted access to information legislation, with at least another 35 considering it. Many inter-governmental bodies, including the European Union, the UNDP, the World Bank, and all of the regional development banks, have adopted access to information policies. There is a significant global civil society fraternity advocating for more, and better, access to information laws in countries all over the world. And there is a large and growing body of authoritative statements by international human rights bodies and officials, including international human rights courts, to the effect that access to information is a fundamental human right. Indeed, one can observe a shift in terminology, as access to information/freedom of information laws are starting to be called right to information laws (see, for example, the 2005 Right to Information Act of India). There are very good reasons for this remarkable trend. The traditional governance reform drivers are still important. Recognising a right to information promotes accountability, holds governments to their promises and helps control corruption. It also makes good business sense, fostering a synergistic flow of information between government and the profit-making sector, which enhances the competitiveness and efficiency of the latter. The shift to recognition of access to information as a human right, however, has deeper roots in changing notions of the importance of information in society and the very concept of democracy as ongoing participation in decision-making. It reflects the idea that public bodies hold information not for themselves but as custodians of the public interest. Everyone should have a right to access that information so as to be able to influence the activities of public bodies for the greater public good. This, in turn, is based on the idea that widespread public participation, rather than oversight by a few wise men, is the most effective way to run the public sector. The basic structure of a good law – a presumption in favour of disclosure, procedural rules for requesting information, a narrow regime of exceptions to the right of access, and the right to appeal to an independent body against refusals to provide access – was already understood in 1982. But with the shift from governance reform to basic right has come a greater understanding of what makes access to information laws work well in practice. The importance of ‘details’ such as tight timelines for responding to requests for

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information, limiting exceptions to circumstances where release of the information would pose a risk of harm to a protected interest, comprehensive public interest overrides for exceptions, sanctions for officials who wilfully obstruct access, and oversight bodies with binding powers to order the release of information has come to be recognised. In 1982, the Canadian Access to Information Act was a progressive piece of legislation which could claim to be competitive with the other access laws which existed at the time. Unfortunately, Canada has failed to reform the legislation sufficiently over time to respond to implementation problems and to incorporate new and progressive developments in the sector. There has also been inadequate attention to the need for reform due to technological changes and changes in the structure of government. It lacks all of the details mentioned above, as well as a number of other critical features widely recognised to underpin effective access in practice. Furthermore, the impact of the ATIA is limited by an impressive array of secrecy provisions in other laws which override the right of access. And its scope is increasingly limited as regards its application to bodies which discharge public functions. Mr. Tromp’s book is an impressive comparative study which highlights all of these problems and more, comprehensively detailing how the Canadian legislation and practice fails to conform to international standards and the practice of other democratic States. It is a clarion call to those who would wish to ensure democracy and respect for human rights in Canada: the Access to Information Act and its implementation in practice are in urgent need of reform. Otherwise, Canada’s international reputation as a country with a strong commitment to participation and human rights, as well as its ability to deliver those benefits to its citizens, are at risk.

- Toby Mendel, Halifax, Nova Scotia, Canada, August 2008

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Toby Mendel has been the Law Programme Director for the past decade with Article 19, a London-based human rights organisation with a specific mandate and focus on the defence and promotion of freedom of expression and freedom of information worldwide. In that capacity, he has worked extensively on right to information issues in Asia, Africa, Europe, the Middle East and Latin America, running training seminars, taking cases to both national and international bodies, advising NGOs and governments, and working with officials to prepare draft right to information laws. Prior to joining Article 19, Toby Mendel worked as a senior human rights consultant with Oxfam Canada, and as a human rights policy analyst at the Canadian International Development Agency (CIDA). He has a first class LLB (law) from Dalhousie University. He is the author of The Public’s Right to Know: Principles of Freedom of Information Legislation (1999). These Principles were endorsed by the UN Special Rapporteur on Freedom of Opinion and Expression, in his report to the 2000 session of the United Nations Commission on Human Rights.

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Preface by T. Murray Rankin In every sense of the word, this book is a labour of love. It is certainly a book of passion. Stanley Tromp has done us all a great service in compiling this thoughtful analysis of freedom of information law and policy around the world. Its remarkable scope and its detailed analysis of the key issues are staggering. His spread sheet, World FOI Chart, alone is worth the price of admission. It seems almost trite now to observe that information is the lifeblood of a democracy. Freedom of information legislation, which as Mr. Tromp describes is also entrenched in constitutions around the world, is a right worth fighting for. Perhaps sadly, this book places Canada in the global context and demonstrates just how far behind other countries Canadians are in providing a meaningful right of access to their government’s public records. Reading this book will no doubt make you angry: why do Canadians tolerate this state of affairs? Mr. Tromp helpfully sets out the provisions in the statutes and constitutions of most of the countries in the world. Critics will be quick to argue that it would be naïve in the extreme to think that simply entrenching a right to information in a constitution or even a statute will somehow make it so. Mr. Tromp is far from naïve. His purpose is to show just how woefully far Canada has fallen – not only with respect to the letter of the law, but also, sadly, with the spirit of open government. The former Information Commissioner of Canada, John Reid noted that the “culture of secrecy” has not been significantly altered in this country, despite a generation of experience with the Access to Information Act. Politicians become ministers, and they become easily seduced by the attractions of secrecy. Mr. Reid also expressed the view that that to maintain our legal and democratic rights of access to government information, citizens must take an active role in preserving and pressing for improvements. I agree. Stanley Tromp is one of those citizens. The tone of righteous indignation that permeates his book is truly infectious. One thing is abundantly clear: the ATIA is now in desperate need of reform. Even if there had not been serious teething problems resulting from the grafting of a statutory right to records onto a previously secretive parliamentary system of government, the breathtaking strides in information technology since 1982 have caused fundamental and ongoing changes in government’s record management practices. Significant and thoughtful proposals for reform have been made almost continuously over the last two decades, most of them dutifully recorded in this book, but very few have attracted parliamentary attention. For legislation like the ATIA, which the courts have affirmed is quasi-constitutional in nature, its continuing vitality now hinges upon meaningful reform efforts. It is now time to squarely face the perennial issue of commitment: is there a political will

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and a bureaucratic willingness to live up to the quasi-constitutional rights now enshrined in the ATIA? Is there a similar will to amend the law now, as is urgently required, to make it responsive to some of the serious and pressing issues canvassed in this book? Mr. Tromp is a watchdog and a fierce one at that. In the tradition of I. F. Stone, he is a citizen advocate for open government both at the provincial and federal levels. In a sense, he has become our conscience in this crucial policy field. After some 25 years into our marriage to freedom of information, Canadians need to rekindle the passion in what has become a very stale relationship. Without a meaningful right to information, our democracy atrophies. Freedom of information is a right worth fighting for. Stanley Tromp has been a real champion of this right: he leads the way for the rest of us to follow.

- T. Murray Rankin, Victoria, British Columbia, 2008

_________________ T. Murray Rankin, Q.C., (LL.M., Harvard University, 1977) is a partner in Heenan Blaikie LLP, and Adjunct Professor of Law the University of Victoria. For a decade he taught Administrative Law and Environmental Law. He is the author of the influential 1977 report Freedom of Information in Canada: Will the Doors Stay Shut? (Ottawa: Canadian Bar Association), and co-author with Heather Mitchell of Using the Access to Information Act (International Self-Counsel Press, Ltd., Vancouver, 1984).

In the 1980s, he translated a leading French language text, René Dussault, Louis Borgeat, Administrative Law: A Treatise. He continues to serve as a Regional Editor of the Canadian Journal of Administrative Law and Practice.

He also served as consultant to the House of Commons committee that conducted the review of the Access to Information Act and Privacy Act in 1987, and in 1992, was appointed as special advisor responsible for the policy formation and drafting of British Columbia's first Freedom of Information and Protection of Privacy Act.

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Summary of Findings

( French version at: www3.telus.net/index100/foi )

Fallen Behind: Canada’s Access to Information Act in the World Context. Report by

Stanley Tromp, 2008

• On 12 key points, Canada’s 1982 Access to Information Act (ATIA) fails to meet the international standards of freedom of information law as they are set out in the 1999 document The Public’s Right to Know: Principles of Freedom of Information Legislation. (This document was drafted by Toby Mendel of the Law Programme of the London-based human rights organization known as ‘Article 19,’ and then subsequently endorsed by the United Nations Special Rapporteur on Freedom of Opinion and Expression.) • Canada’s ATIA also fails to conform to many central FOI recommendations from at least ten other global political organizations, such as Commonwealth Secretariat, the Council of Europe, the Organization for Security and Co-operation in Europe (OSCE), and United Nations Development Agency (UNDP).

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• (Chapter 1) More than half of the nations with FOI statutes considered – that is, 42 out of 68 - explicitly grant the public some right to obtain government information in their Constitutions or Bill of Rights. These include France, Mexico, New Zealand, South Africa, and many Eastern European nations. Canada does not.

• (Chapter 2) The right of all people regardless of their citizenship or location to make access requests is the accepted international standard, included in the FOI laws of 51 nations, including that of Canada’s parliamentary model, the United Kingdom. But under the ATIA, non-citizens who are not present in Canada have no right to file requests.

• (Chapter 3) The Conservative Party of Canada’s 2006 election platform statement Stand Up for Canada pledged to subject the decision to invoke the Cabinet confidences to exclusion to a review by the Information Commissioner, and grant to the Commissioner the power to order the release of information. These promises were not fulfilled. Yet the FOI statutes of 16 other jurisdictions grant an independent administrative appeal body the power to order information release. These include Mexico, Pakistan, India, New Zealand, Scotland, the United Kingdom, and Zimbabwe. The same power is held by the information commissioners of five Canadian provinces. • (Chapter 4) The Conservative party pledged in 2006 to ‘expand the coverage of the Act to all Crown corporations, Officers of Parliament, foundations and organizations that spend taxpayers' money or perform public functions.’ This promise was only partially fulfilled.

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Yet in Canada more than 100 such quasi-governmental entities are still not covered by the ATIA. The exclusion of such entities such as the Canadian Blood Services and the nuclear Waste Management Organization could result in harm to public heath and safety. On this topic, Canada has fallen farthest behind the world FOI community. The FOI laws of 29 nations cover legal entities performing ‘public functions’ and/or ‘vested with public powers.’ The statutes of the United Kingdom, India, and New Zealand provide good models. Most provinces (notably Quebec) contain much broader definitions of what is a ‘public body’ than is found in the ATIA – the criteria for inclusion can include public funding and control over appointments. • (Chapter 5) The Conservative Party pledged in 2006 to “provide a general public interest override for all exemptions.” This promise was not fulfilled. Yet the FOI laws of 38 other nations – and all the Canadian provinces and territories (except one) - contain much broader public interest overrides than are found in the Canadian ATIA. These include Mexico, New Zealand, South Africa, Ireland, the United Kingdom, India and most Eastern European nations. Some of the laws state that the override should apply to all the FOI exemptions and be mandatory, not only apply to two exemptions and be discretionary, as is the case in the ATIA. • (Chapter 6) The Conservative party pledged in 2006 to subject all ATIA exemptions to a “harms test.” This promise was not fulfilled. Seven ATIA exemptions still lack explicitly-stated harms tests and so are known as “class exemptions,” a situation that falls seriously short of world FOI standards. Worse, in 2006 the government amended the ATIA to enable it to withhold draft internal audits, in Sec. 22.1(1). • (Chapter 7) The ATIA exemption for policy advice (Sec. 21) is far broader than in most of the world. Unlike with the ATIA, the FOI laws of South Africa, the United Kingdom and Scotland include a harms test for some of their policy advice exemptions. These and other laws also have public interest overrides for policy advice records. The FOI laws of seven provinces and territories have shorter time limits for withholding records under their policy advice exemption than the 20 years prescribed in the ATIA. • (Chapter 8) The records of cabinet discussions are excluded completely from the scope of the FOI law only in Canada and South Africa. Here, the Information Commissioner does not even have the legal right to review such records. Yet cabinet confidences were subject to a mandatory exemption – not an exclusion - in Canada’s original federal Freedom of Information Act, Bill C-15 of 1979. Nine Commonwealth nations have such a mandatory exemption – better yet, the United Kingdom’s is discretionary - and five of these are subject to public interest overrides. More than 50 other FOI statutes have no specific exemption for cabinet records at all (although they could still be withheld under other sections, e.g., national defence, personal privacy). Cabinet records can be withheld for 20 years in the ATIA, but only for 10 years in Nova Scotia’s FOI law.

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• (Chapter 9) The Conservative Party pledged in 2006 to “oblige public officials to create the records necessary to document their actions and decisions.’ This promise was not fulfilled. The harmful trend towards “oral government” has spread in Canada: officials often fail to commit their thoughts to paper, and convey them verbally instead, primarily in an effort to avert the information emerging in response to FOI requests. Several national FOI laws prescribe record creation, and the duty to catalogue records in a way that facilitates access. • (Chapter 10) Amongst the world’s FOI laws, the average request response time is two weeks. Eight nations mandate a reply within 10 days. At least 60 other FOI jurisdictions in the world prescribe shorter timelines than in Canada, and some have strong penalties for delays. Yet under the Canadian ATIA, public bodies must respond to requests within 30 days, and may extend this for another 30. ATIA response delays have truly reached a crisis level. Some departments are so backlogged that they automatically add extensions of more than 100 days to most, if not all, requests. Others agencies grant themselves a 240 day extension - three times the previous average. In the ATIA, the reply may be extended for an unspecified “reasonable period of time” – which is not the global legal standard. • (Chapter 11) Today there are more than 50 other statutory provisions in other laws that override the ATIA. The Conservative Party pledged in 2006 to remedy this problem, and so render the ATIA supreme on disclosure questions. This promise was not fulfilled. (The generally agreed-upon solution is to abolish ATIA Sec. 24, which embodies this problem.) Several Commonwealth nations - including India, Pakistan and South Africa - establish that the FOI law will override secrecy provisions in other laws. In the United Kingdom, the Department of Constitutional Affairs has committed to repealing or amending 97 other pieces of legislation that limit FOI rights, and reviewing a further 201. • (Chapter 12) The expressed purpose of the ATIA is to serve as a last resort for information seekers. But, on the contrary, many officials in Canada are now telling information seekers to use the ATIA for even the most innocuous records, instead of routinely releasing them as they should, a needless process that leads to delays and added costs to the state. On the subject of pro-active publication and routine release, the rest of the world has left Canada far behind. Most nations from Albania to Zimbabwe prescribe the release of many vital types of information in sections of their FOI statutes and, unlike the ATIA’s perfunctory Section 5, many of these are exhaustive, sometimes over 400 words each. • (Chapter 13) The ATIA does not contain any requirement for public education and the promotion of FOI rights. Yet several nations do mandate such activities in their FOI statutes, such as Mexico, Slovenia and Ecuador.

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• (Chapter 14) There is just one narrow and discretionary case in which the public interest in environmental protection can override an ATIA exemption, one regarding third party information (Section 20). Yet as noted in Chapter 5, the FOI laws of 38 other nations have much broader public interest overrides, especially for environmental interests. The United Kingdom passed a set of Environmental Information Regulations in 2004. Eight nations, mainly in Eastern Europe, explicitly mention the public’s right to environmental information in their Constitutions (which is also implicitly included in the general FOI guarantee in the Constitutions of 50 nations). As well, the 1992 Rio Declaration of the U.N. Conference on Environment and Development, which Canada signed, prescribed transparency on environmental information. The 1998 Aarhus Convention prescribes the sharing and free public access to vast amounts of environmental information amongst 40 European and Central Asian nations, and some of these nations try to fulfill their Aarhus obligations through their national FOI laws. Yet there is no North American equivalent to such a treaty. • (Chapter 15) There is no other employee protection in the ATIA, per se. In 2005, Parliament passed Bill C-11, the Public Servants Disclosure Protection Act. But it also regrettably amended the ATIA to prohibit the disclosure of certain information (with no mention of a time limit, harms test or public interest override). The United Kingdom and the United States have much stronger stand-alone whistleblower protection laws, which could serve as models for Canada. • (Chapter 16) In 31 nations, the FOI law includes some kinds of penalties for obstructing the FOI process, including Ireland, Mexico, Pakistan, India, Scotland, and the United Kingdom. In the ATIA, there are penalties for destroying records and obstructing the Information Commissioner, but other nations go much farther. For instance, 20 nations impose fines for obstructing the FOI process, while 15 nations (eight of these in the Commonwealth) prescribe prison terms for impeding it. In Canada, Quebec’s FOI statute contains the broadest definition of obstructionism. • (Chapter 17) The right for the public to access meetings – for several entities such as parliament, courts, commissions, municipalities - is prescribed in several national FOI statutes, and in ‘sunshine laws’ of every American state, but not in Canadian federal law. In sum, the best examples for Canada to generally follow for overall inspiration are, the access laws of India and Mexico (in most but not all their respects). Amongst draft FOI bills, that of Kenya offers a superlative model. Canada surely needs to at least raise its own FOI laws up to the best standards of its Commonwealth partners - and then, hopefully, look beyond the Commonwealth to con-sider the rest of the world. This is not a radical or unreasonable goal at all, for to reach it, Canadian parliamentarians need not leap into the future, but merely step into the present.

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THE NEED FOR REFORM

‘There is wide recognition that the [Canadian ATI] Act, which is largely unchanged since its adoption, is in drastic need of updating.’

- David Banisar, The Global FOI survey of 2006

‘The Government of Canada agrees that the Act must be modernized. Considering the importance of the Access to Information Act, we must come together as Parliamentarians to discuss it, we must hear from expert witnesses, we must consider all elements, all angles, all people.’

- Irwin Cotler, Justice Minister of Canada, 2005 discussion paper on ATIA ‘The Access to Information Act has been crying out for an overhaul for years.’

- Jeffrey Simpson, The Friendly Dictatorship. McClelland and Stewart, 2001 ‘Twenty-two years ago, when the Access to Information Act was introduced, Canada was a global pioneer in freedom of information. Today, our access law has been outpaced by social, economic and technological change. More than 50 countries have adopted freedom of information laws in the past ten years - and many go much farther than ours.’

- Leonard Asper, president and chief executive officer, CanWest Global Communications Corp., CNA Superconference, Vancouver, June 3, 2004

‘A number of elements of the stronger international models considered here, especially the UK legislation, can be found among the suggestions for reform of the ATIA that have been proposed for consideration in recent years in Canada. This fact suggests that the legislation and experiences of these countries may be useful in developing an updated ATIA for Canada.’

- Kristen Douglas, Access to Information Legislation in Canada and Four Other Countries. Ottawa, Library of Parliament, 2006

‘This Committee believes that after almost 20 years of pressure for its reform, there can be no further delay in the modernization and overhaul of the Access to Information Act.’

- Report of the House of Commons Standing Committee on Access to Information, Privacy and Ethics, November 15, 2005

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A message from Stephen Harper [2006]

The time for accountability has arrived.

Canadians will soon be able to finally hold the Liberals accountable. After 12 years in power, the Liberals must be held accountable for the stolen money; accountable for the broken trust; and accountable for all that they failed to accomplish because of this government’s total preoccupation with scandal and damage control. For those Canadians seeking accountability the question is clear: which party can deliver the change of government that’s needed to ensure political accountability in Ottawa? We need a change of government to replace old style politics with a new vision. We need to replace a culture of entitlement and corruption with a culture of accountability [….] Only one party can deliver the change of government that’s needed to bring political accountability to Ottawa.

Join me and stand up for Canada.

- Stephen Harper,

Leader of the Conservative Party of Canada [From Stand Up For Canada. Conservative Party of Canada federal election platform. 2006 http://www.conservative.ca/media/20060113-Platform.pdf ]

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EIGHT CONSERVATIVE PARTY PLEDGES ON ATIA REFORM, 2006

The Plan. A Conservative government will: 1. Implement the Information Commissioner's recommendations for reform of the Access to Information Act.* 2. Give the Information Commissioner the power to order the release of information. 3. Expand the coverage of the act to all Crown corporations, Officers of Parliament, foundations and organizations that spend taxpayers' money or perform public functions. 4. Subject the exclusion of Cabinet confidences to review by the Information Commissioner.

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5. Oblige public officials to create the records necessary to document their actions and decisions. 6. Provide a general public interest override for all exemptions, so that the public interest is put before the secrecy of the government. 7. Ensure that all exemptions from the disclosure of government information are justified only on the basis of the harm or injury that would result from disclosure, not blanket exemption rules. 8. Ensure that the disclosure requirements of the Access to Information Act cannot be circumvented by secrecy provisions in other federal acts, while respecting the confidentiality of national security and the privacy of personal information. [From Stand Up For Canada. Conservative Party of Canada federal election platform. 2006 http://www.conservative.ca/media/20060113-Platform.pdf ] * Mr. Reid’s bill contained 40 recommendations which, when added to Stand Up for Canada, raised the overall number of Conservative ATIA reform promises to nearly 50.

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‘Information is the lifeblood of a democracy. Without adequate access to key information about government policies and programs, citizens and parliamentarians cannot make informed decisions, and incompetent or corrupt governance can be hidden under a cloak of secrecy.’

- Stephen Harper, 2005 opinion article. (Cited in the Globe and Mail, Nov. 2, 2007)

‘Open government will be the watchword of the Liberal program.’

- Liberal Party of Canada Red Book, 1993 ‘The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government.’

- U.S. President Barack Obama, Executive Order, January 21, 2009

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Introduction - The Right to Know

For the past several decades, most democratic governments in the world have paid homage to the principle – though not always so in practice – of the public’s right to know.

Governments are vast storehouses of information that we pay for with our tax dollars to have created, stored and shared. These records are a vital part of our public property, our history, and our intellectual heritage.

This public wealth of information must be freely shared so that citizens are informed on public matters, are able to engage in public debate, and able to assess the performance of their governments. The alternative – a populace that is ill-informed, or even worse, misinformed about its government - poses a great danger to our democracy. The people will be unable to participate effectively as citizens, unable to hold their government to account, and may stop trusting elected officials. Some degree of public accountability should form an integral consideration of each branch and program of government from the start, and not regarded later - if at all - as an afterthought. These principles were endorsed by the Organization of American States, as the OAS Special Rapporteur for Freedom of Expression expressed in his 1999 Annual Report:

The right to access to official information is one of the cornerstones of representative democracy. In a representative system of government, the representatives should respond to the people who entrusted them with their representation and the authority to make decisions on public matters. It is to the individual who delegated the administration of public affairs to his or her representatives that belongs the right to information, information that the State uses and produces with taxpayer money.1

The Supreme Court of India has stated, in finding a right to information as part of the general guarantee of freedom of expression: ‘Where a society has chosen to accept democracy as its creedal faith, it is elementary that the citizens ought to know what their government is doing.’2 In a 1985 Advisory Opinion, the Inter-American Court of Human Rights went further, concluding that ‘a society that is not well-informed is not a society that is truly free.’3

1 Cited in Toby Mendel, Freedom of Information: A Comparative Legal Survey. Second Edition. Revised and Updated. UNESCO: Paris, 2008 2 S.P. Gupta v. President of India [1982] AIR (SC) 149 3 Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, 13 November 1985. Cited in Mendel 2008

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To enshrine and guarantee the right to know, 75 legislatures in the world have passed freedom of information or FOI statutes.4 In Canada, the equivalent is the 1982 Access to Information Act (ATIA), whose purpose was described in this much-quoted ruling from the Supreme Court of Canada:

The overarching purpose of access to information legislation is to facilitate democracy by helping to ensure that citizens have the information required to participate meaningfully in the democratic process and that politicians and bureaucrats remain accountable to the citizenry.5

This ruling also described Canadians’ access to information as a ‘quasi-constitutional’ right. At least 40 other nations have gone further, explicitly grant the public a right to obtain government information in their constitutions or bill of rights. (See Chapter 1.)

In the ATIA, ideally, the right to know would be limited by rare and narrowly defined exemptions (not exclusions) for records whose release could cause verifiable and substantial harm to a legitimate interest, judged on a balance of probabilities. Unfortunately, the ATIA falls far short of this ideal, as we shall see. The broad principle of the public’s right to know has been accepted in most nations. The challenge remains how to realize the principle in practical reality. To attain this goal, political will and courage are indispensable.

The Global Picture Throughout the world, the freedom of information movement has been spurred on by the internet, the end of the Cold War, more effective transparency lobby groups that seek transparency, and other factors – so that by the end of 2007, a total of 68 nations had passed FOI laws, and 29 more were considering draft FOI bills. It seems best to approach the topic afresh, without expectations or preconceptions. When comparing various FOI statutes clause by clause, from the United Kingdom to the United States, from Liechtenstein to Nunavut, one acquires a window into each jurisdictions’s political traditions and values, and I found the exercise not dry or tedious but unexpectedly compelling and sometimes inspiring. For nations such as those in Africa and Eastern Europe, moving from authoritarianism to democracy and struggling to establish an FOI system, it seemed as through the concepts

4 We shall only consider 68 laws for comparative purposes in this report; the others were passed too late for inclusion here, or have no English translation available. 5 Mr. Justice La Forest, speaking for the entire Supreme Court of Canada, Dagg v. Canada (Minister of Finance), 1997

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of transparency and democracy are inextricably bound, rising or falling together, cause and effect indistinguishable. Some readers may be surprised to learn that China implemented a FOI law in May 2008, the Russian parliament was considering one, and the 2004 Arab Charter ‘guarantees the right to information.’ On May 12 this year, it was reported that ‘Iran approves freedom of information bill with extensive changes . . . every Iranian citizen would have the right of access to public information, and all private and public establishments would be legally obliged to provide the public with unclassified information in the shortest possible time [10 days], and without discrimination among the applicants for such information.’6 I am well aware that such laws may turn out to be futile - or worse - in implementation and practice. The point is that global FOI expectations have generally risen to the point that these states felt impelled to at least voice such rhetoric of openness, displays that seemed hitherto unthinkable. In some cases, of course, an FOI law can be used in opposition to its stated purpose and become a negative force in society. In Zimbabwe, the Access to Information and Privacy Protection Act (AIPPA) was signed by President Mugabe in February 2002. The Act’s main purpose is to suppress free speech by requiring journalists to register and prohibiting the ‘abuse of free expression,’ with 20 year jail terms prescribed. These powers have been widely misused. On paper at least, the AIPPA sets out rights for access similar to other FOI laws around the world; disturbingly, the Zimbabwe government told the African Commission on Human Rights that its FOI procedures were ‘moulded along the lines of Canada's laws on the same subject.’7

________________

As though by an unstoppable wave, the spirit of transparency is spreading across the globe. In his landmark book Blacked Out: Government Secrecy in the Information Age,8 Professor Alasdair Roberts (a Canadian academic authority on FOI statutes) recounts how transparency laws and usage by citizens around the world have led to power reversals that are genuinely profound: * In the Indian state of Maharashtra, villagers found that government-supplied low-cost rations were being sold at a profit by corrupt local ration dealers. When citizens groups rose up and obtained the registers through FOI that proved their suspicions, their action

6 Text of report headlined: "Following four years of silence on a bill formulated by the previous government: The approval of the freedom of information bill with extensive changes" published by Iranian newspaper E'temad website 8 May 2008. BBC Monitoring Middle East. 7 http://www.freedominfo.org/countries/zimbabwe.htm 8 Alasdair Roberts, Blacked Out: Government Secrecy in the Information Age. New York: Cambridge University Press, 2006

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that led to tighter inspections and more public postings of key information. ‘This [FOI law] is the most powerful right ordinary Indians have at their disposal after the right to vote,’ said one civilian activist. • In Thailand, parents whose children were denied entry to prestigious universities used the FOI law through the courts to open up the admissions records, and found that many successful applicants came from privileged families. The government ordered the schools to change their procedures, and Asiaweek called the FOI decision ‘an historic ruling that undercut nepotism and cronyism.’ • Japan’s health ministry was ordered to release the names of 500 hospitals that had received hepatitis-C tainted blood. • In Mexico, even political parties are covered by FOI laws and were pressured to post the party officials’ salaries on websites, because the parties are generously subsidized by public funds (a not uninteresting concept for Canada). • Britain finally passed an FOI law in 2000, and the media - brilliantly The Guardian9 - used it to expose sordid corners of British history, such as torture in 1950s Kenya and bribes to foreign officials by British arms dealers. It also revealed that the British Royal family had received one million pounds in farm subsidies from the European Union. • In China, the municipalities of Guangzhou and Shanghai passed robust FOI laws years before the federal government; some citizens are launching lawsuits to force records open. • Throughout the world, peoples are discovering their heritage through new FOI laws. Mexico opened up 60,000 files on the army’s 70 year campaign of killings and torture against dissidents, and a similar process occurred in South Africa and several Latin American nations. The files of the East German Stasi secret police were disclosed and the names of 173,000 East German informants revealed.

SACRIFICES FOR OPEN GOVERNMENT

It is to the FOI advocates around the world that I dedicate this report and the Chart. Some are prepared to make the ultimate sacrifice for the transparency cause, all to secure a democratic right that Canadians take for granted and rarely use; it may stir one to read reports of their struggles. For example, the Indian state of Maharashtra adopted a Right to Information Act in 2003, prodded by the hunger strike of an activist, Anna Hazare; he resumed his hunger strike the next year to push for better enforcement of the act. Alasdair Roberts reports that in India, some applicants have received death threats for filing FOI 9 See The Guardian’s page of its FOI stories at http://www.guardian.co.uk/politics/freedomofinformation

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requests, and one has been killed for doing so. The risks faced by FOI champions in less democratic nations often make the barriers encountered by advocates here seem comparatively picayune.

_______________ The men who attacked Ivan Pavlov waited beside his car outside his home. They knocked him over from behind and stomped and kicked his head. None of them spoke. They stole nothing. As Pavlov curled defensively on the street, they trotted away. Then they tried to run him over with their car. Pavlov rolled clear, he said. The car sped off. Pavlov, a lawyer who advocates freedom of information in Russia, was hospitalized for a week. The police later told him that the attack appeared to be related to his work, a mission to pry open stores of government information that he says are essential to Russian public life and by law should be in the public domain, but are kept from view by corruption and a lack of interest. As director of the Institute for Information Freedom Development, a private organization he founded in 2004, Pavlov strives to teach government agencies that stores of information in their possession should be available for all to view. His work is necessary, he and his supporters say, because much of the basic information of governance in Russia has never been made public, even after the Constitution codified the public's right to nonsecret information in 1993. At the time he was attacked, Pavlov was trying to a push a state agency to publish, free of charge, the standards used to regulate services and products manufactured in Russian factories. He returned to court upon being discharged from the hospital; a judge eventually ordered the government to post new standards on the Internet. A government commission this autumn passed a decision requiring all standards to be posted free of charge on the government website. Pavlov said he has more lawsuits in store. His goals include the release of a database of Russian pollution sources in the air and water, the filings and registry of Russian corporations and organizations, product certifications, all information at the federal statistics service and a database of decrees issued by ministers in the federal and regional governments. ‘Our job is not to win all of the cases, or to force the government to publish all of the information, but to show people that they have rights,’ he said. ‘Civil rights are like a muscle. If you don't use them, they will atrophy.' - From Russian fights for people's 'right to know', by C. J. Chivers, The New York Times Media Group, The International Herald Tribune, October 27, 2007 Prof. Roberts uses the term ‘soft states’ to refer to poorer countries that have acceded to foreign pressure (sometimes as a conditions for receiving aid packages) to pass their own

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FOI laws, to prove they could be ‘modern’ states, cleanse corruption, and to join global economic unions. Several passed FOI laws merely for window dressing and resisted access in practice; others with simpler administrations can barely manage it or afford to train FOI officials; many nations’ archives are in chaos and even advanced democracies have cut back on recordkeeping funds. Some nations with no FOI laws or draft bills, apart from lacking political will, may be barely able to feed their own people, much less afford to set up a full administrative infrastructure to support an FOI system. In these soft states, FOI applicants are usually not average citizens, but lawyers and the educated elite. A study of Bulgaria, Peru and South Africa found that many government staffers (who were often ignorant of the law) simply refused to accept FOI requests, especially from ‘vulnerable or excluded groups.’10

Domestic FOI laws do not cover international organizations. Perhaps the most onerous new struggle in the global FOI movement will be achieving transparency in such entities such as NATO and the World Bank, highly secretive networks that can hold as much or more power than some national governments, and whose information management rules override national FOI statutes, not visa versa. The importance of a transparency law to an emerging democracy was rarely better summarized than by Richard Calland writing for the Carter Center:

Thus, an access to information law can offer a new beginning in the relationship between government and its citizens. Transparency and the freer flow of information that comes with it provides a chance to build confidence and to craft a new covenant of trust between the governed and the governing. With it come an array of other possibilities – of enhanced international business confidence and, therefore, a more conducive environment for investment and of strengthening the fight against corruption. For citizens, especially the poor, it is a chance to reclaim ground in their struggle for a more just existence. With greater knowledge, people can participate more meaningfully and can contribute to the policymaking process. Moreover, they can use access to information law to gain the information with which comes greater power. In this sense, the Right to Know is the Right to Live.11

10 Roberts, op.cit. 11 Access to Information, a Key to Democracy, edited by Laura Neuman (Chapter: ‘Access to Information: How is it Useful and How is it Used? Key Principles for a Useable and User-Friendly Access to Information Law’ by Dr. Richard Calland), Atlanta, Georgia, November 2002

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EMPOWERING THE PUBLIC IN THE NEW SOUTH AFRICA

In the Republic of South Africa, the Promotion of Access to Information Act No 2 of 2000 (PAIA) is the only FOI statute in the world that applies to both public and private bodies, and has many exemplary features for Canadian lawmakers to consider for our ATIA. In the RSA, the first FOI users’ manual in the African continent was published in 2007, and translated into the nation’s 11 official languages. It is important to realize that access laws could be utilized not just to reveal past injuries, but potentially to avert future harms as well. In his memorable Foreword to the guidebook, S.A. Information Commissioner Dr. Leon Wessels – a former deputy law and order minister in the apartheid regime, and later a police officer, lawyer, and human rights commissioner - also suggests that, beyond major political topics, average citizens can well use FOI laws to deal with everyday issues they face. Many of his points would be recognizable to Canadian readers.

_____________ ‘To move from a deeply inculcated culture of secrecy and bureaucracy to a culture of transparency and accountability is a mammoth challenge. The prejudice against responsive and open governance is certainly not confined to the previous order. The current hostile and ignorant responses received by the Commission in respect of PAIA are proof of this observation. ‘It is of critical importance that the citizens be informed about PAIA and how the right of access to information can work for their benefit. Participation in democratic processes can only be effective if it is informed participation. Many of the tragedies in South African history could have been prevented had there been an access to information regime in operation. It is however important that PAIA reaches far beyond the traditional political civil rights and that it adds a new dimension to public debate on every day issues that citizens have to face. ‘Public and private bodies must understand that their responsibilities under PAIA are not intended to be a costly burden but an essential mechanism to ensure good governance and the transformation of our society. The right, as well as the other entrenched rights should not only be approached in an adversarial manner but rather used as a vehicle to change our society and an opportunity to deal with the vestiges of apartheid. ‘PAIA is central to the transformation of our society. The rule of law and the democratic constitutional state will perish if there is not open and accountable government. The importance and magnitude of the Commission’s constitutional role to monitor and report annually on the realization of socioeconomic rights is matched by its obligation under PAIA. ‘I would be failing in my duty if I don’t express my special thanks to the PAIA Unit for the countless hours they have given towards the compilation of this Guide. You have

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through this Guide contributed towards healing the wounds of the past and enhancing our new democracy. We will rejoice if ordinary citizens of our country use this Guide and thereby give more meaning to their freedoms for which they have fought so hard.’ - Dr. Leon Wessels, in Guide on how to use the Promotion of Access to Information Act of 2000. Pretoria, Republic of South Africa, 2007 http://www.sahrc.org.za/sahrc_cms/downloads/PAIA%20GUIDE%20contact.pdf

CANADA

Breach of Promise Canadian transparency advocates worked two decades towards the passage of an FOI law.12 Yet when it arrived in 1982, many critics objected that Bill C-43 which formed the current Access to Information Act was hopelessly flawed, ‘is riddled with loopholes, is written in ‘legalese,’ is too complex, and relies too heavily on ‘positive attitudes.’13 Calls for reform began almost immediately after the Act was passed. Many consultations were held, and studies and commentaries were published, which will be cited throughout this report; however the most needed amendments to the Act have never been realized, and it has well been described as ‘an 8 track tape player in a digital age.’ We are indeed not living in 1982 anymore. The perceived secrecy of the federal government and bureaucracy was likely one cause of Western alienation that led to the creation of the Reform Party in Calgary in 1987. The current Conservative Prime Minister Stephen Harper arose from this ‘outsider’ protest movement.14 For Reform and Conservative opposition Members of Parliament, this long frustration must have been heightened by the heavy censorship of records they had

12 The lengthy history of the ATIA's passage can be found at - http://www.atirtf-geai.gc.ca/report/reportAnnex8-e.html 13 Catherine Crearar, Access to information; Bill C-43, paper presented to CPSA annual meeting, 1981 14 Ideally, FOI would transcend political parties and ideologies. The dichotomy is not so much between right or left wing as it is between elitist ‘insiders’ and populist ‘outsiders,’ characteristics which might be claimed, accurately or not, by any party. One might expect that most conservative parties would be less inclined towards FOI, insofar as they favour the traditions of past eras, when FOI law were absent. This is indeed often the case but not necessarily so, for ideology is not always tied to governing style. In the province of British Columbia, for example, the worst period for government transparency in many ways occurred in the reign of NDP (quasi-socialist) premier Glen Clark, who openly disparaged the FOI concept and never even feigned support for it; here one might appreciate only the complete ‘transparency’ of his intentions.

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obtained through the ATIA, and seeing their many ATIA reform bills being automatically voted down without debate by a decade-long Liberal majority. It was as though all their pleas for transparency had been addressed to a stone wall. Conservatives also observed that revelations of the Quebec advertising sponsorship scandal - which were to drive the Liberal party from office - were mainly prompted by an ATIA request for an internal audit by the Globe and Mail. ‘After all, it was a lack of transparency that got us into the mess we are in today,’ noted Anne Kothawala, then-president of the Canadian Newspaper Association. ‘More treacherous than graft or collusion is the secrecy that provided an environment in which these alleged abuses flourished. Remember one thing about the sponsorship scandal: we were never supposed to find out about it, and very nearly did not.’15 In response to that scandal, Mr. Harper stated that more transparency was essential to a renewal of democracy, and during the election campaign announced eight major pledges for reform to the ATIA. (These are attached prior to this Introduction.)

No political party - to the best of my knowledge – has ever been elected upon a pledge to implement more government secrecy. Still, I believed in the sincerity of these ATIA reform pledges (and so was chided by others as naïve). The Conservatives were elected in January 2006, and what happened next may still be difficult for some to comprehend.

Most FOI advocates never really expect to obtain everything that they ask for, and are long accustomed to the enthusiasm of pro-FOI candidates waning after their election. Information Commissioner John Reid had said in a 1999 speech that ‘It amuses me to see the profound change in attitude about access to information which occurs when highly placed insiders suddenly find themselves on the outside. And vice versa!’

Yet few laughed after this election. Many observers were shocked to see the new Prime Minister sharply and abruptly reverse his previous position on transparency. His government soon proudly unveiled Bill C-2, the Accountability Act, an omnibus collection of provisions designed to ‘clean up government.’ The bill prompted Information Commissioner John Reid to issue a rare ‘special report,’ writing in it that no previous government ‘has put forward a more retrograde and dangerous set of proposals to change the Access to Information Act.’ Furthermore:

What the government now proposes - if accepted - will reduce the amount of information available to the public, weaken the oversight role of the Information Commissioner and increase government's ability to cover-up wrongdoing, shield itself from embarrassment and control the flow of information to Canadians.'16

15 Test of ethical government comes after vote, by Anne Kothawala. The Toronto Star, January 13, 2006 16 Special Report to Parliament, Information Commissioner John Reid, April 28, 2006

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Among Mr. Reid's concerns was a proposed 15-year ban on releasing draft internal audit reports. This was most troubling because such documents were vital in exposing abuses in the federal advertising program. While in Opposition, Mr. Harper condemned the previous Liberal government for proposing a similar exemption. Also worrisome was the proposed creation of 10 new grounds on which bureaucrats may deny ATIA requests; many of these loopholes would have been mandatory and contained no harms tests.17 Yet media researcher Ken Rubin, who has filed more than 30,000 access requests since 1983, suggests outrage is naive. The ATIA was not written to open the government to public scrutiny, he says; it was written to codify secrecy.18 (I have reluctantly come to consider that this outlook could be correct.) He adds that it is the job and responsibility of journalists to fight that trend to secrecy.19 After the resulting protests, the Prime Minister then pulled amendments to the ATIA out of the Accountability Act and instead replaced them with a regressive ‘discussion paper' by the Justice Department, seemingly to be studied indefinitely by the House of Commons standing committee on access, ethics and privacy. Expectations raised so high are not easily lowered. Access advocates had again underestimated the senior bureaucracy’s utter tenacity and skill at blocking transparency reform, which was the likely cause for the Prime Minister’s policy reversal. ATIA reform has been exiled, yet again, to the graveyard of needless study. ‘We've been studying access-to-information reform for ten years at committee,’ said New Democratic MP Pat Martin. ‘We all know what needs to be done in terms of access-to-information reform, and this is a stall and delaying tactic.’20 Yet this inaction sparked a minor revolt within Tory backbench ranks, a modestly hopeful sign. Maclean's magazine learned that Ontario Conservative MP Mike Wallace wrote to

17 One of the positive aspects to the Federal Accountability Act was its inclusion of an amendment to the ATIA adding a duty to assist access requesters. According to the Information Commissioner’s 2007-08 Annual Report, ‘It changes duty to assist from a moral obligation to a statutory one - in fact, a statutory principle under which to interpret the Act.’ 18 In 1981, Professor John D. McCamus wrote of Bill C-43, the precursor of the ATI Act: ‘Indeed, on close inspection, the Bill has, in many respects, all the appearance of a freedom of information law drafted by individuals who have little sympathy for the basic objectives of such a scheme.’ John D. McCamus, Bill C-43: The Federal Canadian Proposals of 1980 in McCamus, ed., Freedom of Information: Canadian Perspectives. Toronto: Butterworths, 1981 19 Tentacles of secrecy grip tightly, by Kelly Toughill. Toronto Star. Aug. 9, 2008 20 Don't let cold feet stop the Tory war on secrecy. Editorial. The Globe and Mail, April 8, 2006. Elsewhere, Mr. Martin said ‘It's absolutely a death-by-committee tactic. They chickened out. Their officials and senior bureaucrats got to them.’ - Want to know a secret? Too bad: Harper's Conservatives promised a new era of full accountability. Then they got into power, by John Geddes. Maclean's magazine. Oct. 16, 2006

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Justice Minister Vic Toews on June 22, 2007, on behalf of himself and three other Tories on the committee, pressing for decisive action - nothing short of legislation – the next fall to toughen the access law in line with the Tory campaign pledges. ‘We are committed to bringing forward a new act," Mr. Wallace said, referring to the party's election platform.’ The magazine reported that, ‘Beneath his polite tone is an unmistakable anxiety about what exactly the Conservatives stand for, now that they are running the show.’21

_______________ Mr. Harper did fulfill a portion of one of his promised reforms. In the Accountability Act, the government extended ATIA coverage to several foundations, officers of parliament, the Canadian Wheat Board and all crown corporations and their subsidiaries. Yet more than 100 quasi-governmental entities remain uncovered, most disturbingly the nuclear Waste Management Organization and Canadian Blood Services. As a result of those actions, on the day in December 2007 when the Governor General gave her royal assent to the set of new laws, the Prime Minister proudly announced that ‘We promised to stand up for accountability and to change the way government works. Canadians elected this government to deliver on that commitment, and today the federal Accountability Act . . . . delivers on the government's promise.’ These incorrect claims - widely reported and still repeated by government MPs today - did the Canadian transparency movement much harm, for they enabled the government to mostly win the ‘spin war’ in its effort to push ATIA reform off the public radar for the next years.

The media response to all these developments was immediate and withering.22 As Lawrence Martin in the Globe and Mail wrote:

As chief example-setter for team transparency, Prime Minister Harper has his own woes. The Conservatives, to their credit, brought in accountability legislation that had many good features. But their comportment has served to undermine what the act represents. . . . The new morality was to be one of this government's cornerstones. In less than a year and a half, the cornerstone has crumbled.23

On ethical and democratic reform, James Travers of the Toronto Star noted, ‘Harper is telling the capital: Do as I say, not as I do. What it will hear is the opposite.’24

21 Geddes, Want to know a secret? op.cit.

22 For instance, note the important and disturbing six part Toronto Star series Secret Capital, which began on May 26, 2008 - www.thestar.com/News/Canada/article/429906

23 So much for the new governing morality, by Lawrence Martin. The Globe and Mail, May 21, 2007 24 Harper: Do as I say, not as I do: The Federal Accountability Act, by James Travers. The Toronto Star, April 13, 2006

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On the Tories’ Accountability Act, Geoffrey Stevens, political science professor and former Globe and Mail managing editor, was unambiguous:

If there is any lingering doubt about the hollowness, the emptiness, the cynicism - the sheer hypocrisy - of the Harper campaign promises, it is swept away by the devastating report released on Friday by Information Commissioner Reid. . . . Harper is developing into the most secretive, most controlling, least trusting prime minister in Canadian history.

Special reports to Parliament are rare, and Reid's should have set alarm bells ringing in newsrooms across the country. In last week's column, I suggested (to the annoyance of Harper fans) that the Prime Minister's ability to govern is undermined by his inability to trust others. My question today is: Mr. Harper, why should the people trust you if you don't trust them?25

This year the Canadian Association of Journalists awarded Prime Minister Stephen Harper its ‘Code of Silence Award’ for 2007. ‘Harper's white-knuckled death grip on public information makes this the easiest decision the cabal of judges has ever rendered,’ said CAJ President Mary Agnes Welch. ‘He's gone beyond merely gagging cabinet ministers and professional civil servants, stalling access to information requests and blackballing reporters who ask tough questions. He has built a pervasive government apparatus whose sole purpose is to strangle the flow of public information.’26 ‘Both Liberal and Conservative governments have lied about their FOI reform promises, and ‘”lie” is not too strong a word,’ said Prof. Roberts.27 Stifling the ATIA process is just one aspect of this government’s overall pattern on tighter information control, and I have noted many other examples at http://www3.telus.net/index100/secrecy

_______________

The Information Commissioner The federal Information Commissioner can play a critical role in championing the ATIA and ensuring an effective system. In December 2006, Prime Minister Harper announced the nomination of Robert Marleau as the new Commissioner, succeeding the undaunted John Reid (strongly aided then by former deputy Alan Leadbeater). Mr. Marleau had

25 Harper turning into Canada's most distrusting PM, by Geoffrey Stevens. The Record. Kitchener, Ontario, May 1, 2006 26 ’Psst... Harper Wins CAJ secrecy award. May 25, 2008. http://www.eagle.ca/caj/ Also see CAJ press release, via CNW, on National Right to Know Day, Oct. 1, 2008 – ‘Canada used to be a global model of openness, and now we're backsliding into the dark ages of government secrecy, obfuscation and denial,’ said Welch. 27 Alasdair Roberts, speech to FIPA event marking Right to Know week, Oct. 1, 2008, SFU Harbour Centre, Vancouver, B.C.

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served Parliament as a public servant for 31 years, 13 of which were spent as Clerk of the House of Commons. His predecessors in the commissioner’s role had backgrounds further detached from the bureaucracy, which many observers had hoped for again. The Commissioner has spoken about many potential changes, including sanctions against poorly performing departments; lengthening the initial 30-day period the act requires for a response; imposing a quota on active complaints from a single user; allowing the commissioner to declare some requests frivolous or vexatious; giving speedy decisions in matters of broad public interest; and expediting cases involving legal action. His annual report for 2007-08 noted his case-load of complaints is up by a staggering 80%, over the previous year. (The government counters that more than half of the extra complaints concerned a single Crown corporation, the CBC, which has been swamped by a single applicant.) His office was given special funding recently to hire eight people to help clear the giant backlog. In an interview with the Globe and Mail in January 2008, Mr. Marleau did not directly blame the Tories, but said the government's own statistics show that information requests are slowing down ‘across the board.’ He added that bureaucrats who answer requests say one of the key obstacles is the Privy Council Office, which serves the prime minister and cabinet. The commissioner had issued the PCO a ‘failing’ grade for its slow response time. As well, to his credit, he has appealed a recent federal court ruling that states the Prime Minister’s and minister’s offices are not covered by the ATIA. Yet there have been regrettable signs as well. In June 2008, the Commissioner held a private session in Ottawa’s Rideau Club to hear selected invitees’ views on ATIA reform. The Public Policy Forum, which had been retained through sole-source contracts to organize the event, said guest lists are secret and comments by participants would not be attributed. Longtime access expert Ken Rubin, for one, was invited but said he would not attend unless it became public, adding that it is up to the Commons Ethics committee and not Mr. Marleau to spearhead an overhaul of access law.28 It should be self-evident that that secrecy around the FOI reform process itself - sometimes called ‘meta-secrecy’ or ‘secrecy squared’ - is the most ironic and indefensible of all. The harshest critique of the Commissioner’s record to date has come from Toronto Sun columnist Greg Weston:

28 Access to information meeting should be public, experts urge, by Tim Naumetz. The Ottawa Citizen, May 27, 2008. Mr. Marleau’s approach reminds one of the 2001 Treasury Board Secretariat’s task force study of the ATIA that drew so much criticism for its secret meetings, for the process seems to contradict the very spirit and purpose of FOI laws. Likewise, in British Columbia I have made FOI requests for public entities’ ‘wish lists’ for FOI law reform they had sent to the provincial government; these texts were denied me on the ‘policy advice’ exemption, I appealed to the B.C. Commissioner and a ruling is due soon.

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So far, the current information commissioner isn't helping matters. A former Commons clerk, Marleau apparently sees his job as being a faceless bureaucrat writing unremarkable reports. His first report succeeds mainly in offending no one, and is guaranteed to please the prime minister who picked Marleau for the job. But the problem Marleau inherited was not that his predecessor publicly went to war with the government. The problem is an administration intent on dismantling 25 years of progress towards open and accountable government under access to information laws. Standing up to the bullyboys requires more than just wanting to play nice with the other kids.29

The Commissioner was also much criticized for dramatically changing the way he treats complaints on request delays to reduce backlogs, and keeping the new rules initially hidden. Starting June 2008, he planned to do away with a first-come, first-served system in favour of a ‘triage’ approach that will see some complainants such as MPs and the media jump the queue;30 some charge this would create second-class applicants. He replied at length in Maclean’s Magazine to his critics:

There’s a time to be aggressive and there’s a time to be consultative, collaborative and cooperative. I’m supposed to mediate. I can’t be shrill. I just can’t be out there screaming reform and secrecy. Right now I think ATIA needs champions, both in the user community and in government institutions, but it doesn’t need warlords. . . . If all you do is bark, then after a while you don’t hear the dog. I’m not saying you have to wag your tail, but sometimes backing off gives you some results.31

Mr. Marleau’s job is a not an easy one, and events over the next few years could have the potential to test the Commissioner’s patience; there may still be surprises in store

The Primary Obstacle Coming from the tradition of Western protest, and from his former leadership of the National Citizens Coalition, Conservative Prime Minister Stephen Harper came to Ottawa with a stated belief that government is too large and the bureaucracy and the media are too ‘liberal’ (even too Liberal), and hence opposed to his basic goals. This outlook has important consequences for the freedom of information system.

29 Ask all you like; Just don't expect any answers under the Harper government's Accountability Act, by Greg Weston. Toronto Sun, June 8, 2008 30 Information watchdog is tackling government secrecy, but he's not saying how, by Dean Beeby, Canadian Press. Globe and Mail, May 12, 2008 31 Maclean’s magazine online, June 20, 2008. http://blog.macleans.ca/tag/robert-marleau/

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To begin, one can hardly generalize accurately about the ‘bureaucracy’ as regards the FOI system. Rather than a single uniform entity, it seems to be composed of at least six distinct but related subgroups working together in a complex network; each subgroup can have subtly different values, mandates and purposes. 1) The designers of FOI law and policy. The most senior civil servants, deputy ministers, and Justice Department lawyers. These provide advice and draft legislation to ministers, and the struggles that can ensue for the paramountcy of one vision would be familiar to viewers of Sir Humphrey Appelby in the BBC TV series Yes Minister. 32 2) The central coordinating and support office for FOI practice. Implements policy, advises FOI coordinators and organizes regular meetings of these, may manage a cross-government tracking FOI database (such as CAIRS, which was recently terminated), collects overall statistics, etc. In Canada, this duty falls to the Treasury Board Secretariat. 3) The ‘head of the public body,’ e.g., a deputy minister, who must approve (or ‘sign off’ on) the release of information to FOI applicants. Ultimately responsible for the FOI function in each agency, he or she provides data to the Information Commissioner, for use in that office’s ‘report card’ on delays. 4) The agency’s FOI directors and their staff, the amiable public face of the FOI system, usually the only ones who deal directly with FOI applicants (and who are sometimes erroneously blamed by applicants for dysfunctional FOI laws and processes). 5) Governmental non-FOI staff, who nonetheless work on FOI tasks. Employees in program areas who must search for records in response to requests; sometimes – because of their expertise in a topic – they advise FOI directors on what topics should be withheld as sensitive, and are sometimes too heavily influential in that regard. 6) Internal or external legal counsel, who advise and litigate on FOI matters. It may be inaccurate even to generalize about a single subgroup, for each can include individuals with very different attitudes toward their FOI-related tasks. Various members of these subgroups in turn interact with politicians, their aides, government public

32 The ubiquity of this charming fictional character can hardly be overestimated. In his final annual report, David Flaherty, British Columbia’s information and privacy commissioner, wrote that: ‘Senior government officials have complained that they were no longer free to give candid advice to their political masters, because of the risks of disclosure of what they write in briefing notes. It was almost as if democracy was being undermined by too much democracy. I was actually told by a senior public servant that the public's right to know was limited to what they could ask for through their elected representatives. When I countered that this sounded too much like the BBC-TV series, Yes Minister, there was unabashed acclaim for Sir Humphrey as an outstanding public servant.’ – David Flaherty, Annual report 1996-97 http://www.oipcbc.org/publications/annual_reports/1997AR/comm97.html

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relations staff, members of parliament of all parties, FOI applicants, other governments, the commissioner’s office, the courts, FOI and privacy advocacy groups, the media, third party corporate entities, and others. Often in small agencies, several roles are handled by the same person, who might even be a part-time employee or a private contractor.

___________ One of the central principles of a modern democracy is a separation of powers between the legislative and bureaucratic branches, hence ideally there must be no political influence on the day-to-day processing of FOI requests, which is within the bureaucracy’s mandate. ‘Let the politicians create policy and let the civil servants carry it out’ is the stated norm; however, this standard is not always followed in Canada.33 Most operational-level FOI bureaucrats are well meaning and hardworking professionals who are proud of their work, try with limited resources to comply with the letter and spirit of the FOI law (as they interpret it), and hope to avoid political influence. But in this report, we are mainly concerned with the first level, the policy creation subgroup – by far the single most powerful obstacle to ATIA reform. This may be indicated by the words of Senator Francis Fox, who was the cabinet minister responsible for shepherding the ATIA bill into law in the early 1980s:

Initially, I though that it would be easy to get a bill like this through the legislative process. It turned out to be quite the opposite. The longer the work of the parliamentary committee went on, the greater the bureaucratic pressures became to change and even withdraw the legislation. . . . In the final analysis, had it not been for Prime Minister Trudeau’s support, the bill probably would not have passed.34

Generally the higher the level of governance, the more privacy; information is power, and the more power one holds, the more one has to lose. The attractions of confidentiality are not hard to perceive:

Max Weber noted that every bureaucracy tries to increase the superiority of the professionally informed by keeping their knowledge and intentions secret. Concealment insulates administrators from criticism and interference; it allows them to correct mistakes and to reverse direction without costly, often embar-rassing explanations; and it permits them to cut corners with no questions asked.35

33 Similarly, Stephen Brown, who for 15 years was head of the legal services branch of Australia’s Defence Department, said ministers and their staff were always an obstacle, despite ministers' claims that FOI decisions refusing access to material were made at arm's length. - Department permanently on defence, by Matthew Moore. Sydney Morning Herald (Australia), June 7, 2008 34 Senator Francis Fox, preamble to Colonel Michel W. Drapeau and Marc-Aurele Racicot, Federal Access to Information and Privacy Legislation, Annotated 2009. Toronto: Thomson Carswell, 2008

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Such confidentiality - which bureaucrats who embrace Plato’s concept of the ‘Noble Lie’ sometimes incorrectly equate with the public interest – will not be readily yielded.36 From experience, longtime FOI advocates have learned not to expect the bureaucracy to budge an inch on any significant aspect of transparency reform, although it could sometimes occur as a surprise. Yet in the 2005 and 2006 governmental ATIA discussion papers, to some eyes, the old hardline resistance appears to be melting slightly, as though the reports’ authors sensed that times have changed. In Canada and elsewhere, many senior civil servants still persuasively warn politicians of the grievous dangers of open government. This cannot help but remind one of the words of the supremely suave British bureaucrat Sir Humphery Appelby, lecturing a naïve junior named Bernard in Yes Minister.

Bernard then said: ‘The Minister wants Open Government.’ Years of training seem to have had no effect on Bernard sometimes. I remarked that one does not just give people what they want, if it’s not good for them. One does not, for instance, give whiskey to an alcoholic.

Arnold rightly added that if the people do not know what you’re doing, they

don’t know what you’re doing wrong.

This is not just a defense mechanism for officials, of course. Bernard must understand that he would not be serving his Minister by helping him make a fool of himself. Every Minister we have would have been a laughing stock within his first three weeks in office if it had not been for the most rigid and impenetrable secrecy about what he was up to.37

But what can be amusing up on the screen is often far less so in real life. Politicians resist the letter and spirit of FOI laws not so often with the goal of gaining or consolidating power, but from the fear of losing it (a concern that one can, if not share, at least understand). By conveying such politically irresistible arguments - all in private, of course - the unelected Canadian bureaucracy has ever thwarted ATIA reform attempts by

35 Sissela Bok, Secrets: on the Ethics of Concealment and Revelation. New York: Pantheon Books, 1982 36 This problem is not new. Bureaucratic resistance is surely one reason why it took 17 years of continuous lobbying - since NDP MP Barry Mather introduced the first transparency bill in 1965 - to finally pass the Access to Information Act. Canada’s first information commissioner Inger Hansen noted in 1984 that ‘Many public servants must experience a 180-degree turn before requested records will be examined with a view to finding ways to release information rather than searching for ways to keep it secret.’ The access act, she warned, was in danger of becoming the ‘unwanted offspring in Ottawa.’ (Information Commissioner Inger Hansen, Annual Report, 1984-85) Plus ca change . . . 37 Yes Minister. From the private diary of Sir Humphery Appelby. Espisode titled Open Government. London: BBC publications, 1981

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elected officials such as justice ministers, treasury board presidents, and at least one prime minister. One is sadly at a loss on how to resolve this dilemma. Elected politicians come and go; bureaucracy endures forever.38

In a 2006 discussion paper by the Justice Department, ironically titled Strengthening the Access to Information Act, the bureaucratic outlook seems expressed in a nutshell in a note on ATIA discretionary exemptions:

Part of the exercise of the discretion in the Act comprises an assessment of whether the public interest would clearly be in favour of disclosing the information. A possible approach, therefore, could be to include a provision that when the head of the institution exercises discretion in applying an exemption, the head must weigh the interest of the government institution against public interest.39

Here the government interest is pitched against the public interest, as if they were separable and opposable; may we hope the federal government could someday regard the two concepts as one and the same? The possible consequences should be considered. ‘It is an unfortunate fact of life that many Canadians are extremely suspicious if not downright cynical about the federal bureaucracy. In part, as we have argued, this suspicion stems from fear of the unknown or, at least, the inadequately understood.’40 Needless or excessive secrecy in regard to FOI can only make the problem worse, and if this approach enables the spread of falsehoods and conspiracy theories, the government would have only itself to blame. For those who still regard sweeping secrecy as an unqualified value, there are many counterarguments. For one, the concept of legitimate, truly necessary secrets is devalued. Another point is raised in this perceptive Australian newspaper editorial:

38 Indeed, secrecy is so pervasive that it even occurs within government, in forms that might have amused Franz Kafka. I have a list of the topics of hundreds of FOI requests that were made from one level of Canadian government to another level, e.g. from federal to provincial ministries. A former information commissioner told me that a cabinet minister once made an FOI request to his own department (anonymously, using an intermediary) to learn more about its activities. 39 Government of Canada, Strengthening the Access to Information Act: A Discussion of Ideas Intrinsic to the Reform of the Access to Information Act. Ottawa, 2006 http://canada.justice.gc.ca/en/dept/pub/atia/index.html 40 Robert L. Jackson and Doreen Jackson, Politics in Canada: Culture, Institutions, and Behaviour in Public Policy, second edition. Scarborough, Ontario: Prentice Hall Canada, 1990. The authors also noted there may be solutions to this dilemma: ‘Nor is there an absence of mechanisms through which control or accountability might be imposed on the bureaucracy by elected institutions. Rather, if there is a problem, it might well be described as a lack of political will to make use of these control mechanisms. . . . Ultimately, as with governments, it may be argued that societies get the bureaucracies they deserve.’

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When you look at the cases cited by the audit and other cases of whistleblowers and journalists being hounded, or access to information being denied, a theme emerges. In virtually every case, the public would have been better off if the information had been made public earlier. And ironically, the politician would have been better off, at least in the long term. This is because if the information or advice had been public from the beginning, the politician would not have dared make a decision for short-term gain when the long-term effects would be so obviously bad.41

It is well known that FOI applicants are generally outresourced and outsmarted by governments able to access nearly bottomless reserves of public funds42 to hire the best legal minds in the nation to quash the FOI requests of applicants. As James Travers noted:

Twenty-three years after access to information was born, politicians and bureaucrats continue to kill its spirit by arguing endlessly over the letter of the law. So determined is that resistance that a cottage industry now thrives counseling ministers, their staff and the civil service on how not to share public information with the public.43

Besides existing political needs being met, new ones can be generated, as fears of supposedly grave new political harms that could result from FOI disclosures are discovered and conveyed to ever-attentive governmental ears.44 Yet do bureaucrats and crown lawyers still expect us to believe that the other nations of the world and our provinces have done it wrong with their FOI laws, and that Ottawa, alone, with its 25-year-old ATIA, has done it right? Some even argue that Canada’s current ATIA, although so meager in the global context, is already too open and needs further curtailment.

41 FOI process needs urgent overhaul to halt needless secrecy, Canberra Times (Australia), Nov. 10, 2007 42 For example, by an ATIA request, I discovered in 2002 that the Prime Minister’s office and a department had paid more than $500,000 to their legal counsel to sue the Information Commissioner in an unsuccessful court case to assert that the ATIA did not apply to the PMO or the minister’s office. 43 Harper: Do as I say, not as I do, ibid. 44 In September 2007, the Canadian Newspaper Association released a report complaining that media ATIA requests were being ‘red flagged’ and delayed. In was reported that, in reply, ‘The government has engaged four different contractors to parse the numbers and refute the newspaper association's interpretation of the survey results.’ (Newspaper group slams Tories for 'red-flagging' FOI requests, by Bruce Cheadle, Kamloops Daily News, September 28, 2007) It is not impossible that similar parsing (at taxpayers’ expense) could ensue in response to this report, in the hopes of refuting its conclusions.

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The current government has deferred ATIA reform with claims that more study is needed, yet one editorial noted, ‘it is far more likely that cabinet ministers have been getting an earful from senior mandarins, political staffers and Crown corporation bosses who have no interest in opening their doors to greater public scrutiny.’45 John Ibbitson echoed this idea: ‘Since the bureaucracy hates having to hand over information, and since the media, which rely on the Act, are not loved by the Conservatives, the government may have been susceptible to whispered counsel from the mandarinate on this file more than on others.’46

Suzanne Legault, assistant Information Commissioner, said government institutions have to ‘move from disclosing information on a need-to-know basis to disclosing information on the right-to-know basis.’47 Yet even if civil servants did favor more transparency, the current political culture would render it impossible. (Leaks would then remain the last option.) ‘When it comes to ethics and openness in government, officials at all levels of the bureaucracy take their cue from the top,’ as Greg Weston of the Toronto Sun noted. ‘If there is one clear message from this secrecy-obsessed Conservative administration, it is that officials open their files to the public at their own peril.’48 Canadian civil servants have been punished for releasing too much information to the public, but who has ever heard of one being penalized for overzealously withholding it?

The civil service may have been perplexed, however, by an interview that Treasury Board president John Baird gave to the Globe and Mail three months after taking office in 2006, in which he positively stated that public servants should honour the spirit of the ATIA and stop searching for reasons not to release government documents: ‘We want a culture of accountability. You shouldn't be looking for reasons why you can't release something. You should be looking for the reasons why you should. Information is the lifeblood of a democracy, the basis of which all accountability happens.’49 In sum, although the Conservatives came to power in Ottawa distrusting the bureaucracy and expecting it to oppose their goals, both sides may be grateful to have found at least one common purpose: the desire to keep records of their activities and plans private. In doing so, one not merely protects oneself, but the other as well, a relationship that can grow to a form of co-dependency. The self-interests of both politicians bureaucracts often merge into one, for they share and defend the same fortress, and yet the public is locked out in the cold. 45 Don't let cold feet stop the Tory war on secrecy. The Globe and Mail, April 8, 2006 46 Clean doesn't get any squeakier, by John Ibbitson. Globe and Mail, April 12, 2006 47 Government keeps public in the dark, critics warn; Canadians denied information to which they are entitled, by Richard Brennan. Toronto Star, April 7, 2008 48 Let's keep this quiet; When it comes to ethics in government, cues come from the top, by Greg Weston. The Toronto Sun, May 15, 2007 49 Loopholes' appear in Ottawa's ban on lobbying; Accountability act has exemptions, by Bill Curry. The Globe and Mail, April 14, 2006

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TRANSPARENCY HAS IMPROVED, SAYS FEDERAL GOVERNMENT

Conservative MP and current Treasury Board president Vic Toews robustly contests assertions that his government is not being transparent with Canadians. He writes: ‘As of Sept. 1, the Accountability Act created a duty for institutions to assist requesters without regard for their identity. These are tremendous steps forward for transparency, giving Canadians unprecedented access to information about how the federal government spends their money and operates. ‘In his last report, the information commissioner indicated that under the Conservative government, response to access to information requests has improved. Nine institutions received better grades from the commissioner over the previous year, with three moving from an F under the previous Liberal government to an A under the Conservative government.’

- Opened up, by Vic Toews. Letter to Calgary Herald. Oct. 5, 2007 ‘Our Conservative government has used the exact same process for handling ATI requests as previous governments. They are addressed by non-partisan public servants with no political interference. ‘While some may be disappointed in the response times they experience, the fact is that there has also been a massive increase in the number of requests being made. Across government, from the period of 2002-03 to 2006-07, the total number of ATI requests received per year has grown by 27 per cent. But to illustrate our commitment to openness and transparency, over the same period, the number of requests completed per year has increased by 33 per cent. ’We have worked to meet this demand by continuing to aggressively hire and train ATI staff and build operations. . . And as a result of the Federal Accountability Act, more than 200 new organizations are subject to the Access to Information Act. In keeping with the changes we implemented to make government more accountable to Canadians, we are now proactively publishing more information than ever before.’

- Completed ATI requests stepped up, by Vic Toews. Letter to Hamilton Spectator (Ontario), Oct. 10, 2007

The Question of Context

Some observers believe that because each nation’s freedom of information law derives from its unique political history, culture and legal system, its main features cannot or should not be transplanted from one nation to another. This commonplace requires closer examination.

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It seems less persuasive when applied to laws within a region - such as South America or Eastern Europe – or within a special political grouping such as that of the 53 nations of the Commonwealth (formerly known as the British Commonwealth). Still, in deference to this claim, I structured this report continually in two levels, so that the Canadian ATIA could be compared first to the FOI laws of Commonwealth nations, and then to non-Commonwealth states.

If the Canadian government insists upon staying within the political and legal comfort zone of the Commonwealth ‘box’ as regards FOI laws, this choice would still not argue for retaining the status quo of the Canadian Access to Information Act; for most of the Commonwealth has, unsurprisingly, moved far ahead of Canada since 1982 (as will be seen throughout this report). This is partly due to the process of ‘leap frog’ by which, as times change, countries learn from the experience and mistakes of others, and consider new theories and realities, all to forge new statutes that surpass existing ones. Thus even the United Kingdom – Canada’s model for parliamentary secrecy, which passed an FOI law nearly two decades after we did – has well outpaced Canada on many critical points (although frankly it still lags behind us on a few others). Canadian officials, to deter ATIA reform, still invoke the great tradition of Westminster-style confidentiality; if so, how do they explain why the UK Freedom of Information Act (effective 2005) grants the information commissioner there the power to order record release, contains a broader public interest override, and a harms test for policy advice, and covers a vastly wider range of quasi-governmental entities – all features lacking in our ATIA? In February 2008, for example, the UK Information Commissioner, on ‘public interest’ grounds, ordered the release of the minutes of two cabinet meetings of 2003 on the Iraq war, in reply to an FOI request. (This decision is currently under appeal to the U.K. Information Tribunal.) In Canada, on ATIA legal grounds, this would be impossible. The best Commonwealth examples for Canada to generally follow for inspiration are, I believe, the access laws of India and South Africa (in most but not all their respects). Amongst draft FOI bills, that of Kenya offers a superlative model. Even in a world growing ever more integrated and interdependent, I would still never suggest that the domestic FOI laws of every nation should be harmonized. Yet Canada surely needs to at least raise its own FOI laws up to the best standards (and not the worst) of its Commonwealth partners - and then, hopefully, look beyond the Commonwealth to the rest of the world. This is not a radical or unreasonable goal at all, for to reach it, Canadian parliamentarians need not leap into the future but merely step into the present.

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Could Canadians officials and parliamentarians attempt to think outside the Common-wealth box? In 1987, two Canadian political scientists issued a caution, one that would likely be echoed by the federal government:

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Access to information is a new, experimental field of public law. There are constitutional and practical limits to how far and how fast we can move toward greater openness in government. The experiences of countries like Sweden and the United States may not provide clear lessons for Canada because their political systems and traditions are different. Some measure of secrecy appears to be inherent in a cabinet-parliamentary system with a neutral, career public service.50

Hence some Canadian bureaucrats and politicians are truly horrified by the thought of changing the ATIA cabinet records exclusion to a mandatory exemption, and permitting the court to make a so-called ‘political’ decision if the exemptions were properly applied. (Yet this is the norm in most other Commonwealth legislation.) Some officials will argue that Canada must conform to Commonwealth laws on FOI matters generally, and to step outside this context would somehow be too great a political and ‘cultural’ shock for this country to sustain. But is it? As we embark upon this tour through the FOI world, I ask Canadians to consider that a positive and workable idea could be welcomed whatever its source. For example, in Mexico’s FOI statute, ‘information may not be classified when the investigation of grave violations of fundamental rights or crimes against humanity is at stake.’ As well, its agencies ‘must place computer equipment at the disposal of interested persons so that they may obtain information directly or by printing it out.’ In Serbia’s law, agencies must respond to FOI requests in 15 days (the global standard), except in cases where there is a threat to the person's life or freedom, protection of the public health or environment, in which case the reply must be made within 48 hours.

Should we spurn helpful concepts for ATIA amendments solely because they originated in non-Commonwealth nations? Are the adjustment difficulties – and the ‘harms’ that would supposedly result from their broader provisions – often overstated here? As the Justice Minister wrote in 2005, ‘Considering the importance of the Access to Information Act… we must consider all elements, all angles, all people.’51 (But hopefully not eternally)

50 Robert F. Adie and Paul G. Thomas, Canadian Public Administration: Problematical Perspectives. Scarborough: Prentice-Hall, 1987. The authors added that ‘The Swedish and American political systems are structured in such a way that more government decision-making takes place in the open and public consultation over policy-making has been more widely practiced. If these qualities were the ultimate aims of the advocates of reform to the Canadian traditions of secrecy, they probably exaggerated what could be accomplished through legislation alone; fundamental changes to the constitutional arrangements would probably be required.’ I cannot agree with this concept, but welcome more comprehensive study and debate on it.

51 Justice Minister Irwin Cotler, in A Comprehensive Framework for Access to Information Reform: A Discussion Paper. Ottawa, April 2005 http://www.justice.gc.ca/en/dept/pub/ati/index.html

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Such decisions are not always black or white, because features from others’ FOI statutes need not be transplanted verbatim to Canada but many could - with the exercise of political imagination - be adopted and modified to suit our context. Some writers will likely divide foreign FOI provisions into two categories: those that could well fit the existing Canadian political structure (e.g. procedural matters), and those (e.g., perhaps those dealing with cabinet records and policy advice) that they assert could not. In freedom of information matters, Canada, much like our geographic position, occupies a political middle ground between the United States and Great Britain. Much of the political incentive to enact the ATIA in Canada was prompted by the passage of the American FOI Act 16 year earlier, but the text of the U.S. law itself did not influence the patterns of ours; many officials here would still argue that that choice should stand; I am less certain.52 The political and other impacts of FOI law and practices abroad represent a fascinating and critical subject, yet beyond our present scope. Canadian politicians and bureaucrats plead successfully - although without evidence - that grievous ‘harms’ would likely occur if wider disclosures were prescribed in the ATIA (e.g., regarding public interest overrides, order power for the commissioner, coverage of all quasi-governmental entities). From the experience of other nations, we can see if these speculative injuries actually came to pass, or not. Very rarely do we hear complaints from foreign governments that such harms ensued, nor urgent calls to amend their FOI to bring them down to the Canadian level; if such proposals were put forth, the public reaction could be well imagined. In the world context, the Canadian government’s mere assertions that a more open feature of another nation’s FOI law ‘would just not work here’ with no explanation whatever are no longer adequate today. Although, of course, it should retain the ultimate power to act on FOI policy, and although this concept may be regarded as ahead of its time, if called upon to do so, the government would do well to publish a justification - which could be termed an ‘FOI Incompatibility Rationale’ – as to why the most open FOI law section or policy in other nations would ‘not work here,’ e.g., on why the domestic constitutional structure reportedly would not allow for more cabinet transparency. (For at least the present time, I am speaking of nations within a significant international unit, whether it be considered political or regional, e.g., Germany within the European Union, Lesotho in Africa, or Canada in the Commonwealth.) In the process of newly searching for rationales, parliamentarians might discover that several received Canadian common-places on the FOI subject can no longer withstand reasoned scrutiny in the 21st century.

52 On this issue, I have heard visiting American journalists deride Canada’s FOI laws as ‘pathetic’ in comparison to their own, and the process of trying to obtain information from Canada on cross-border issues as ‘shockingly bureaucratic,’ and I was unable to contradict them. (On such grounds, in fact, Canadian journalists sometimes find information through the American FOIA about Canadian affairs that they could not obtain in this country.)

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Law vs. Practice It is at least interesting to observe that, unlike in Canada, the FOI law of China requires information to be released within 15 days; that in Pakistan the ombudsman may order records disclosed; that in Turkey officials who negligently obstruct the FOI process must face disciplinary sanctions. In response, critics might laugh and call it absurdly naïve to assume such provisions will be enforced or could possibly affect any reality on the ground. The statutes might be just ‘paper tigers,’ they say; recalcitrant officials can (and sadly do) find countless means to sabotage a law, such as by creating harmful regulations, or undermining its spirit by fixating on its letter. Moreover, ‘The most secretive authoritarian regimes may have impeccably democratic constitutions allowing in principle for perfect openness.’53 As Prof. Roberts put it plainly, ‘Most of the world’s FOI laws are “dead laws” – because they’re just not being followed in practice.’54 Should these facts discourage us? Yes, and no. Although fully aware of such objections, I would reply that statutes are comparatively more important and enduring than actual governmental practices of the day.55 A statute is a normative statement of a jurisdiction’s professed values and goals; one tested by practice, and shaped by interpretations and rulings. Because freedom-of-information is such a recent historical development in most regions, transparency practices derive mainly from statutes, not common law. The relationship is not reciprocal: i.e., there are many good FOI laws that do not result in good practice, but one very rarely sees good FOI practice without a good FOI law first in place as a foundation for it.56 Even in several less democratic nations, an exemplary access law at least gives FOI applicants the possibility to obtain information to which they are legally entitled, should

53 Sissela Bok, Secrets: on the Ethics of Concealment and Revelation. New York: Pantheon Books, 1982 54 Alasdair Roberts, speech to FIPA, Oct. 1, 2008, op.cit. 55 Even a comparative study of actual FOI practices worldwide might not be to Canada’s gain, for Canada’s access practices are generally still worse than the anemic ATIA law itself (as the Information Commissioner details each year in his annual report). A nation’s actual FOI practices can fluctuate greatly with the various administrations of the day. Of course, a full comparative study of global FOI practices in future would be most welcome. 56 Unfortunately, ‘Some countries have only very limited administrative code provisions which are inadequate to protect the right to information. In Europe, this is the case with the administrative provisions in Greece, Italy and Spain, which fall well below the standards of full access to information laws (this is also true of some other countries, such as Chile for example).’ - Supplementary Human Dimension Meeting on Freedom of the Media: Protection of Journalists and Access to Information. Vienna, 2006. Rashid Hajili, Chairman of the Media Rights Institute

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they succeed in their appeal to court (and several such unexpected victories have been noted globally); but without an effective law, they would have no hope at all.57 As the Commonwealth Human Rights Initiative has noted, ‘While a law alone cannot always ensure an open regime, a well-crafted law, which strengthens citizens’ democratic participation, is half the battle won.’58 The point was echoed by two authors writing for the World Bank Institute:

[I]t is important that the right to access information is guaranteed by law. Even though ministers and officials may recognize the importance of transparency, the political and bureaucratic pressures to control information can be irresistible. Merely the act of adopting a law can limit certain abuses and can make people aware of their rights. It is also a way of signaling government’s commitment to transparency and the first step of institutionalize the right to access information and provide resources to it. Moreover, the law can be an important tool in building democratic attitudes and enhancing trust in institutions.59

However, as many observers also note, the enactment of a FOI law is only the beginning. For it to be of any use, it must be well implemented and public agencies must change their internal cultures. Applicants need to exercise their rights by filing requests, while advocates work in the indefinite future to improve the law further and ward off later government amendments to weaken it. ‘On its own, an access to information law is no panacea,’ observed Richard Calland of the Carter Center. ‘But with political will, it can lay the pivotal foundation stone around which can be built a fairer, modern and more successful society.’60

57 Of course, some may object that this statement presumes that the nation in question has a responsible, independent judiciary that can be relied upon to render judgments fairly based on the FOI statute (still another topic outside our scope of inquiry); and even when the FOI statute does not change, judicial culture and practice can over time, which can influence interpretations and rulings on the law. 58 Commonwealth Human Rights Initiative, Open Sesame: Looking for the Right to Information in the Commonwealth, New Delhi, India, 2003 http://www.humanrightsinitiative.org/publications/chogm/chogm_2003/chogm%202003%20report.pdf 59 Kaufmann, Daniel, and Ana Bellver, Transplanting Transparency: Initial Empirics and Policy Applications. World Bank Institute, Washington DC, August 2005. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=808664 ‘Errors and views are solely the authors’ and do not necessarily reflect the official position of the institution.’ 60 Access to Information, a Key to Democracy, edited by Laura Neuman (Chapter: Access to Information: How is it Useful and How is it Used? Key Principles for a Useable and User-Friendly Access to Information Law, by Dr. Richard Calland), Carter Center, Atlanta, Georgia, November 2002 http://www.cartercenter.org/documents/1272.pdf

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In sum, to dismiss a comparative study of national FOI statutes mainly on the grounds that the actual practices of the day might not follow their texts is a red herring, beside the point, and certainly no reason to cease trying to improve Canada’s ATIA.

FOI and the Media Although the news media in Canada generally file only between five to ten percent of freedom of information requests, the benefit to the public interest is felt far beyond these statistics. This fact has been widely recognized. ‘I can't think of a major story in Ottawa that hasn't had an access component,’ said reporter David McKie, who has broken many major stories as a producer in CBC Radio's investigative unit.61 It was an ATIA request in the late 1990s by Mr. McKie and colleague Mike Gordon that ultimately made public a key database inside Health Canada chronicling cases of adverse drug reactions.62 ‘The Act's many highly visible achievements far outweigh the disappointments,’ wrote Information Commissioner John Grace, a former journalist for 22 years. ‘A day seldom goes by without stories in the news media, courtesy of the access law, providing the public with information which otherwise would have never seen the light of that day.’63 As always for the media, persistence is essential, and a great deal can be at stake, as one journalism text notes:

If the reporter can be dissuaded by this initial [FOI request] refusal, and many can be, the government learns how well the strategy works and the information remains locked away. Thus the battle to pry loose government data that ought to be public is a battle for more than information – it represents the larger struggle for freedom of expression and the public’s right to know.64

61 There's a good reason why David fights Goliath; Big stories, from the sponsorship scandal to illegal daycares, began with a single request - even if it meant annoying those in power, by Bill Curry. The Globe and Mail, Sept. 22, 2007 62 The data allowed the CBC to report a major rise in adverse drug reactions among youth taking certain antidepressants, yet no public warning had been issued. A second story using the same database showed that thousands of seniors were dying each year from the drugs prescribed to them by doctors. ‘We've heard from countless Canadians and academics about the usefulness of this,’ Mr. McKie said. ‘Canadians have used this information to go to their doctor to ask questions about the drugs they're taking.’ In 2005, Health Canada made the searchable database permanently available to the public. - There's a good reason why David fights Goliath, ibid 63 Information Commissioner John Grace, Annual Report 1993-94. In the same chapter he added: ‘This report also comes to say that the Access to Information Act is irreversibly, relentlessly, and indispensably, transforming the old, closed, bureaucratic culture.’

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Some journalists, initially keen on FOI requests, are eventually worn down by enervating delays, unaffordable fees, and sweeping exemptions, and so abandon the process.65 Such a result is most unfortunate, for with shrewdness and endurance, good stories can still be rooted out using the law.66

The cost of administering the ATIA, allegedly ‘high,’ is really an almost imperceptibly small fraction of the federal budget.67 In fact, the FOI system often saves public funds, because public outrage over misspent money – revealed via media FOI requests – can induce government to trim the waste and tighten controls (and this cause-effect process has occurred). Conversely, knowing the FOI system is ineffective can enable politicians and bureaucracy to spend in ways that they realize the public would consider intolerable if it knew;68 the advertising sponsorship scandal might be cited.

Yet sometimes officials – in Canada and surely elsewhere - try to thwart reform to the FOI law and discredit it by telling politicians (in private) that the process is too often used by ‘frivolous and vexatious’ applicants, such as some journalists seeking sensational information that they can use to ‘sell papers,’ - all of which causes the government to waste money and labour to process FOI requests, resources that are more needed to ‘provide core services to the public,’ and so forth. Yet even if such problems had ever occurred, this would not invalidate the ATIA. In 2007 Ian Paisley, the First Minister of Ireland, indicated that if would like to limit FOI enquiries aimed at the Executive. ‘On occasions’ he argued ‘the requests are of a wide-ranging and detailed nature that requires many hours of research, and are sent in by lazy

64 Maxine Ruvinsky, Investigative Reporting in Canada. Toronto: Oxford University Press, 2008 65 For such reasons, the government’s current baneful practice of ‘red-flagging’ and hence delaying media ATIA requests – a problem reported by the CNA - urgently needs curtailment. - Newspaper group slams Tories for 'red-flagging' FOI requests, by Bruce Cheadle. Kamloops Daily News (B.C.), Sept. 28, 2007 66 The words of Andrew Osler in 1982 might be hardly less relevant today: ‘If it's to work, (and always assuming the mandarins and ministers really want it to work), this new Access Act may demand more changes in the style and habits of working journalists than it will of politicians and bureaucrats.’ - Access Law: A Weak Light for Dark Corners, The Windsor Star (Ontario), August 27, 1982. This is especially notable for the electronic media, as distinct from newspapers which generate the bulk of media FOI requests. 67 The report of the 2002 Treasury Board ATIA task force found the total costs of administering the Act are in the order of $30 million annually or less than $1 per Canadian per year, and concluded that this is a modest cost in light of the democratic benefits. 68 Such examples are detailed in this report’s appendix of article summaries. One could have added many others such as, of course, the advertising sponsorship scandal, the inept handing of the HDRC job fund, popularly known as ‘the Billion Dollar Boondoggle,’ and excessive personal spending at public cost by officials.

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journalists, who will not do any work, but who think that we should pay them and give them the information that they want.’ But on the contrary, the opposite is generally true; journalists who file access requests are amongst the hardest working, as they need to be when the process is onerous;69 and surely less indolent than those who rely upon press releases for story inspiration. Regrettably, these specious claims may be influential. The prevailing sentiment is the one expressed in the mid-1980s by Conservative justice minister John Crosbie, who called the ATIA a tool for ‘mischief makers’ who would use it simply to ‘embarrass political leaders and titillate the public.’ A preferable outlook was voiced by British Columbia premier Mike Harcourt, who told a journalism awards dinner in 1993 that ‘our government passed an FOI law so you fellows can do more stories.’ To counter such negative outlooks, at the end of this report I have posted a collection of summaries of Canadian news story on issues as diverse as health, safety, government financial waste, public security, and environmental risks. They all share two common features: all reveal issues critical to the public interest (i.e., not merely topics the public ‘might find interesting’), and all were made possible through Access to Information Act requests. These articles require a second look, for when such vital stories appear in a daily newspaper they may be forgotten within days, but many should not be, because we could be living continuously with the unresolved problems that they have raised.70 (As well, some such articles have prompted regulatory improvements.) Moreover, not every FOI story necessarily reveals a scandal, but can still be valuable in educating the public on the scope of a little-known issue, and on how government operates. The stories can serve as an antidote against despondency or cynicism regarding the ATIA system, for they show how reporters can still overcome the barriers of bureaucratic and political resistance to produce valuable results. While these are impressive enough, imagine how much more could yet be achieved with an ATIA reformed up to global FOI standards. Such indeed is the overall purpose of this report.71 The media could take the

69 ‘Lazy Journalists,’ by Mark Devenport. The Devenport Diaries. BBC News. Oct. 9, 2007

70 In fact, many of problems revealed are so serious that one can wonder why government did not publish them proactively instead of waiting for ATIA requests.

71 Several in the media are slightly uneasy with the press playing an advocacy role for FOI reform, seeing it as possibly compromising an ideal position of perfect neutrality. Yet seeking information for the public interest is a workaday reality, and a core media function. Such advocacy has a lengthy and honourable tradition, in the United States and elsewhere in the world, with media groups composed of reporters, editors and publishers regularly encouraging FOI reform. As well, each year, the Canadian Newspaper Association (CNA) manages a vast project, aided by journalists across Canada, to test the nation’s lamentable FOI practices, all for the goal of improving transparency. The CNA audit results can be read at: http://www.cna-acj.ca

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lead; as Kelly Toughill, assistant professor of the School of Journalism at the University of King's College, Halifax, put it:

I spent big chunks of the last year in countries where journalists risk jail, exile or violence for criticizing elected officials. When I returned, a friend rather smugly asked if it was wonderful to be back in a land with a free press. Not really. It is an insult to journalists who fight for basic freedoms to take for granted the freedoms that we have in Canada. Instead of luxuriating in our ability to work without fear, we should be pressing for better access to information.72

As regard to claims of the media being driven mainly by profit, in fact, the notion that information obtained through FOI requests sells more newspapers is quite amusing. If only it were so! When the Canberra Times of Australia sought information on various programs through FOI, the government balked and proposed hefty charges, justifying these by claiming the paper would gain a commercial benefit from its publication. The newspaper replied:

I would dearly like to see the research to back up that claim. Sadly, to my knowledge, there is no evidence that newspapers publishing serious articles for the public benefit gain anything in circulation or advertising revenues. If anything, such revenues are more likely to be threatened. Circulation is more likely to be boosted by the most superficial superstar reporting tripe.73

In 1997 the minister in charge of FOI administration in British Columbia raised a furore when he complained that the FOI fee schedule was ‘an explicit subsidy to major media conglomerates,’ and asked ‘why should the taxpayer subsidize research’ for the nation’s largest newspaper chain? The media responded that their FOI requests were intended to serve the public by providing it with vital information, and the higher fees then being planned would most impact smaller community and alternative media who could least afford to pay them.74

As the Canadian Newspaper Association’s then-president Anne Kothawala put it: ‘Freedom of information is not about "selling newspapers," as some cynics allege. It's about real people, with real stories, and about real consequences on our lives. It's central to our way of life and the structure of rights and freedoms that underwrites it.’75

72 Tentacles of secrecy grip tightly, by Kelly Toughill. Toronto Star. Aug. 9, 2008 73 Cabinet briefings must be kept private to ensure sound advice. Canberra Times (Australia), Nov. 25, 2007

74 What Price Accountability? Funding cutbacks and the current financing of the B.C. Freedom of Information process (1997-2000), by Stanley Tromp, FIPA, 2000

75 Lobbying for your right to know, by Anne Kothawala. Speech to the Ontario Club. The Toronto Star, Sept. 26, 2006

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‘Creative Inertia’

Because it entails ceding power, no other federal political reform topic has been more masterfully deferred than ATIA reform, through a process that Sir Humphrey Appleby has knowingly termed ‘creative inertia.’ When the Access to Information Act was passed, it was generally assumed that strong improvements would be forthcoming. A 1987 textbook on Canadian public administration sounded a hopeful note, which may be amusing or sad to read in retrospect:

Most commentators optimistically predict that the parliamentary review of the ATIA begun in 1986 will lead to amendments to bring cabinet confidences within the scope of the ATIA, to tighten up the wording of the exemptions, and to fine-tune the procedures so as to reduce bureaucratic foot-dragging. It is conceivable, though, that the changes could go in the opposite direction . . . . 76

But as we know, no such buoyant predictions were realized.77 That parliamentary committee produced a report called Open and Shut. One can extract it from a storage box, literally blow the dust off, and read on its yellowed pages that the ATIA response time should be reduced to 20 days, that government funded and controlled entities should be covered by the Act, that a harms test should be added to many sections, that the public interest override should be greatly expanded, that the policy advice records should be accessible in 10 years instead of 20, and so forth. One might also recall what Information Commissioner John Grace wrote 14 years ago:

It is a time for action. The challenge is considerable but failure to meet it will leave public information policy, like Matthew Arnold, in the Grande Chartreuse, "wandering between two worlds, one dead the other powerless to be born....". That, indeed would move farce to tragedy.78

Many studies and recommendations for ATIA reform have followed since then, which are cited throughout this report and the chart – proposals recurrently washed away like sandcastles by the tides of power. Now Prime Minister Harper has sent the Act to committee for study, that is, the graveyard of reform. As the rest of the world moves even further ahead each year on FOI, the gap grows still larger, and so it seems that Canada’s ATIA stasis is virtually the equivalent of moving backwards. 76 Adie and Thomas, op. cit 77 As with our recollection of the 1987 Open and Shut recommendations, it seems not impossible that readers two decades hence might look back upon this report and wonder, ‘Did anything change since 2008?’ 78 Information Commissioner John Grace, Toward a Better Law: Ten Years and Counting, in Annual Report 1993-94. http://www.infocom.gc.ca/reports/pdf/OIC93_4E.PDF

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(We could consider Bill C-556 of Bloc Quebecois MP Carole Lavallée and the similar Bill C-544 of NDP MP Pat Martin, introduced in May-June 2008. These are updated versions of the Open Government Act, a complete ATIA reform bill drafted by former Information Commissioner John Reid at the request of the House Access to Information, Privacy and Ethics Committee; the Committee unanimously endorsed the Bill, as did Justice John Gomery, and the Conservative Party then seeking power.) In a Yes Minister episode, the subject of the ‘Open Government’ policy comes up, and Sir Humphrey remarks that they will have to steer the minister away from it, using more studies: ‘It is the Law of Inverse Relevance: The less you intend to do about something, the more you keep talking about it.’ Some explanation for the stasis may be suggested by the introduction to the Canadian Justice Department’s 2005 discussion paper:

There is nothing seriously wrong with the Access to Information Act as it is today. Indeed, the Government believes that the Act is basically sound in concept, structure and balance, and the Information Commissioner himself has stated that it is “a very good law.”79

This claim has very little connection with the current global reality and it is - I and many others assert with respect – incorrect. If such an illusory baseline is the bureaucratic and political opening position, it is an indicator of the long struggle ahead that Canadian FOI reform advocates still face. Yet we could also pause to consider the words of Information Commissioner Robert Marleau, who warned ‘champions’ of ATIA reform to be careful what they wish for:

A government's access reform bill might weaken access, not strengthen it! From a government's perspective, reform might entail making it easier to justify secrecy, making it more expensive to use the Act, weakening the power of oversight, removing classes of records from the Act's coverage, and so forth.80

Yes, this is a risk indeed, but it seems one we should be prepared to take, for almost anything is preferable to enclosure within a circular time warp.

Why This Report Most of the arguments regarding Access to Information Act reform are by now familiar. ATIA discussion - as the Act itself - has long ago grown too narrowly-focused, stale, and circuitous. So, I wish to consider an alternative perspective on the issue, one not fully

79 Justice Department of Canada, A Comprehensive Framework for Access to Information Reform: A Discussion Paper. Ottawa, 2005. http://www.justice.gc.ca/en/dept/pub/ati/ 80 Information Commissioner of Canada, Annual Report, 2006-07

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explored yet: we instead need to continuously (and not at 10 year intervals) reconsider and re-conceptualize the ATIA in the light of rapidly-changing international and historical contexts. This could profoundly and positively alter what Canadians come to expect – perhaps even demand - for their own rights to information.

Although this process may initially cause the Canadian government discomfort, its long-term value will become evident; innovative concepts that we accept as routine today, and even express pride in, were considered unrealistic in their time. The idea for this report occurred to me as I was reading the indispensable guidebook to the ATIA by Colonel Michel Drapeau and Marc-Aurele Racicot.81 Included therein was a 1999 document entitled The Public’s Right to Know: Principles of Freedom of Information Legislation, which describes the generally accepted international FOI standards. These principles were drafted by Toby Mendel, head of the Law Programme of the London-based human rights organization Article 19, and then endorsed by the United Nations Special Rapporteur on Freedom of Opinion and Expression. Perusing the document, I was startled and then dismayed to discover that Canada’s Access to Information Act (even the reformed 2007 version of which this government is so proud) failed the Principles on 12 points. Ironically and inexplicably, Canada appears to be marching in the opposite direction. Searching elsewhere, I found other organizations with similar views, such as the Commonwealth Secretariat and the Council of Europe. This project then expanded on its own, as I thought to compile and cross-reference every relevant document I could find – i.e., the texts of 68 national FOI laws, 29 draft FOI bills, 12 Canadian provincial and territorial FOI laws, the commentaries of 14 global and 17 Canadian non-governmental organizations, and Prime Minister Stephen Harper’s 2006 unfilled ATIA reform promises – and compare these to the ATIA. Their key topics I entered into a comparative FOI Excel spreadsheet – to create the World FOI Chart, this report’s foundation. I hope you will find this tour of statutes to be a useful and interesting window on the vast world of FOI. As will be shown in the following chapters, it is clear that Canada has fallen far behind in the global FOI community, for many reasons: it has not followed the FOI principles of most global and Canadian commentators, nor the FOI laws of many other nations, some of them recently established as democracies. This fact cannot be disputed even by the strongest opponents of ATIA reform. As David Banisar notes in his 2006 Global FOI Survey, ‘There is wide recognition that the [Canadian ATI] Act, which is largely unchanged since its adoption, is in need of drastic updating.’ It is probable that if the government of any democratic nation tried to pass an equivalent of the 1982 Canadian Access to Information Act today (even in its amended 2007 form), the public and parliamentarians there would vigorously reject the effort, even presuming they would take it seriously.

81 Drapeau and Racicot, op.cit

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The report and chart were prepared for both Canadian and global readers, in a manner that hopefully makes legal topics accessible to all, and to move FOI out of the sole realm of experts. In Canada and around the world, we have been regularly told by senior bureaucrats and crown lawyers – wrongly in my view - that FOI law reform is ‘too complex’ for the general public to understand, and so it had best not even try. This is one reason the public was ironically shut out of the 2001 Treasury Board ATIA review meetings entirely. Such paternalistic and self-serving nonsense, of course, contradicts the entire philosophy of FOI laws. I do not have all the answers, nor does any single person or institution, yet in this report I hoped to have raised the right questions; ultimately, readers will make up their own minds. I have sought a wide diversity of sources and approaches, for one of the hopes of the report and Chart is to encourage more real engagement and dialogue between sectors that have hitherto been mainly segregated in FOI discussions - journalists, lawyers, academics, politicians, the bureaucracy, the private sector, applicants and the general public – both in this nation and around the world. The intent of this report’s combining a range of styles was to hopefully bridge the gaps between these sectors.

As well, the multi-purpose chart can also assist FOI applicants and scholars in each global jurisdiction to study how their FOI statutes compare to similar laws in other provinces or nations; to perhaps press for higher standards in their own area’s access laws or practices; or to cite the commentaries when arguing general principles in their FOI legal disputes. (See Appendix 2.)

The Road Forward It is regularly observed that governmental drift towards secrecy seems an immutable law of nature. Information is a source of power, prestige and profit, and whoever wished to yield those? While our main concern here is in comparing statutes, FOI applicants, governments and third parties also often face arduous and complex ethical choices in deciding what information should be sought and released, or not - to whom, how, when, and why. Such decisions can be as much personal as political, reflecting one’s core values or interests, all of which might conflict with those of others’; and the result is generally - but not always accurately - framed in terms of ‘winners and losers.’ In the newly established democracies of the 1990s, some citizens preparing to file their first request under a new freedom of information law may have initially wondered: Is this a mere administrative privilege granted by the state, or a basic human right that one can demand? The answer was soon apparent. ‘Modern FOI principles constitute a Copernican revolution for the development of the free press,’ noted the Organization for Security and

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Co-operation in Europe in 2007.82 Not entirely unlike astronomers who discovered with some surprise that the earth revolves around the sun and not visa versa, citizens perceived that an onus had been reversed: government had to now justify why it could withhold records instead of citizens needing to state why they should have access to them. But of course the struggle for transparency will never be completed. Several years ago in Azerbaijan, a journalist asked the mayor of Baku, who prided himself on the street renovation and new road construction: ‘How much money is spent on this work and where does the money come from?’ The mayor refused to answer the question and replied in presence of media: ‘Dear, what have you got to do with my pocket?’83 In Canada, the mayor of Baku’s memorable riposte could well serve as a motto for the publicly funded Canadian foundations that have long resisted ATIA coverage, as well as the secretariat of the $2.5 billion 2010 Olympics Games, which stopped recording minutes of its meetings after being annoyed by media FOI requests for them. Needless to say, taxpayers have a great deal to do with the government’s ‘pocket,’ for it is really theirs. Regarding the right to know, the view of many officials is summed up by Sir Humphery Appelby in the 1981 Yes Minister episode titled Open Government. He and his ally Arnold rebuke a naïve junior named Bernard who supports more transparency:

Arnold pointed, out with great clarity, that Open Government is a contradiction in terms. You can be open – or you can have government. Bernard claims that the citizens of a democracy have the right to know. We explained that, in fact, they have the right to be ignorant. Knowledge only means complicity and guilt. Ignorance has a certain dignity.

In fact how much does the public need to know, care to know, dare to know? In earlier times, officials would often contend that ‘what the people don’t know won’t hurt them.’ But in fact, it can. They might also sometimes counter truth-seekers with the retort, ‘Do you want the truth? You can’t handle the truth.’ I generally work from the presumption that a leap of faith in the public’s ability to ‘handle’ reality is preferable to the alternative course, to be decided by others, and that government should not patronize adults like children. Although some believe that when in doubt, it is better to err on the side of governmental transparency, in Canada, relative to other democracies, the opposite concept appears to hold sway for the present.

82 Access to information by the media in the OSCE region: trends and recommendations. Miklós Haraszti, Representative on Freedom of the Media, Organization for Security and Co-operation in Europe. Vienna, April 30, 2007 http://www.osce.org/documents/rfm/2007/05/24250_en.pdf 83 Supplementary Human Dimension Meeting on Freedom of the Media: Protection of Journalists and Access to Information. Vienna, 13 and 14 July. Session I. Rashid Hajili, Chairman of the Media Rights Institute, 2006

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U.S. Senator Daniel Patrick Moynihan’s book, Secrecy: The American Experience, was released in 1998, with his conclusion: ‘Secrecy is for losers.’ Why? First, he wrote, because it shields internal analyses from the scrutiny of outside experts and dissenters. As a result, some very poor advice is used to inform many government decisions. Second, secrecy distorts the thinking of the citizenry, giving rise to unfounded conspiracy theories and an unnecessarily high level of mistrust of governments. As George F. Will wrote in a review of Sen. Moynihan’s book: ‘Government secrecy breeds stupidity, in government decision making and in the thinking of some citizens.’84 Retired judge John Gomery, the former head of the inquiry into the Canadian sponsorship scandal, told MPs that the government is ‘badly misjudging’ the situation if it believes Canadians will tolerate a government that does not adhere to transparency. ‘The era of secrecy in government is the past. I'm convinced that any government that behaves secretly is eventually sowing the seeds of its own defeat.’85 In 2006, global FOI expert Alasdair Roberts – who writes with what he terms ‘a measured skepticism of authority’ – said the remarkable growth of international FOI coalitions augered well for the future, and yet:

On the other hand, there are dangers. . . . The popular media, distracted by other news, may stop paying attention to the problem of government secrecy. Debates over openness may seem to become more complicated and technical. Activists will have to devise clever ways of overcoming these problems, to build a robust and durable alliance. Pressure to restore the walls of secrecy will persist - and so, therefore, must we.86

If the public, media, and parliamentarians from all parties object to the fact that the prime minister’s pledges for ATIA reform are unfulfilled, it is best to speak out clearly, lest the government interprets the silence - rightly or wrongly - as consent or indifference. In the meantime, as they have done before, members of parliament and senators from any party can propose ATIA amendments in private members bills, with the goal of creating a lasting legacy for their constituents.

84 Newsweek, October 12, 1998. Cited in Information Commissioner John Reid’s Annual Report 1999-2000

85 Tories failing to end era of secrecy, Gomery says, by Daniel LeBlanc. The Globe and Mail, March 14, 2008

86 Alasdair Roberts, The Struggle for Open Government. The Maxwell School of Syracuse University. Paper prepared for the First International Conference on Corruption and Transparency, Institute of Social Research, National Autonomous University of Mexico, March 23-25, 2006. http://www.aroberts.us/documents/papers/Roberts_NAMU_2006_R2.pdf

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COMMONWEALTH FOI ENDORSEMENTS

The incentive for freedom of information cannot really succeed without direction from the top. Yet in this country, one cannot recall any sitting Canadian prime minister speaking out of the value of an Access to Information Act since the short reign of Joe Clark in 1979.87 In fact, Liberal Prime Minister Jean Chretien openly disparaged it in the House of Commons.

By contrast, British Prime Minister Gordon Brown spoke out strongly in a speech on liberty in October 2007: ‘Freedom of Information can be inconvenient, at times frustrating and indeed embarrassing for governments. But Freedom of Information is the right course because government belongs to the people, not the politicians [….] So it is right also to consider extending the coverage of the Freedom of Information Act.’88

In November 2007, the Australian media was pleasantly surprised that the new prime minister, Kevin Rudd, raised the need for more transparency: ‘When a politician in government raises the issue, it's worth taking notice.’ Two former Australian prime ministers from opposing parties, Gough Whitlam and Malcolm Fraser, had issued a joint statement calling for a better FOI law. In reply, Mr. Rudd told the media, ‘I'm determined to do something about freedom of information. This is notoriously seen as something that executive governments don't like because it causes information to go out which might be embarrassing. I'd like to, by contrast, encourage a culture of disclosure within government departments."89

87 Joe Clark’s words a year before his taking power still bear consideration: ‘We are talking about the reality that real power is limited to those who have facts. In a democracy that power and that information should be shared broadly. In Canada today they are not, and to that degree we are no longer a democracy in any sensible sense of that word.’ (House of Commons, Ottawa, Hansard, June 22, 1978)

88 British Prime Minister Gordon Brown, speech on liberty. October 25, 2007

89 The law needs fixing, and so does the culture; Freedom of Information - What they won't tell you, by Matthew Moore, Herald Freedom-of-Information Editor. Sydney Morning Herald (Australia), November 30, 2007. The newspaper astutely added: ‘Even better is the fact that the person he [Rudd] has appointed is John Faulkner, whose many attributes include his lack of legal qualifications. It is about time we had less law and more common sense in deciding what information the public has a right to know.’

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In Canada the entire access to information system, which information commissioners warned was ‘in crisis,’ years ago, has now been pushed by this administration to the breaking point. For the time being, it appears that Canadian FOI advocates have been compelled to shift their focus from proactive to reactive, staging rearguard actions just to preserve their meager existing ATIA rights, before seeking improvements. (In time as well, the general chilling effect on government openness resulting from the Sept. 11, 2001 terrorist attacks on New York will grow more distant.) It may be best to see this tragic situation in the long term view, as a historical aberration and not a permanent reversal. The current reality might even prompt Canadians to objectively and wholly reconsider how they view FOI, what it should be in the digital age, and what it means in their relationship to government. It was 15 years ago that former Information Commissioner John Grace wrote that ‘[ATIA] Reform should be undertaken as an important part of the revitalization of the political process and the renewal of Canadian democracy.’90 ‘Canada is the greatest country in the world,’ it was proclaimed in the federal throne speech of October 16, 2007. To conform to this statement, it would do the nation well to implement the best freedom of information statute in the world. Moving Canada even somewhat closer to the accepted global FOI standards is essential for Canadians who wish to be regarded as ‘global citizens,’ and who care about this nation’s world reputation concerning democracy and human rights. In 2006 the public elected the current government mainly in angry response to the advertising sponsorship scandal – a scandal revealed by an ATIA request - and it is fstill not too late for the Conservatives to fulfill their eight electoral promises to reform the Act, as a golden opportunity to rebuild the public’s faith in government. It is important to recall that freedom of information is a subject that ideally transcends political parties and ideologies; and that any party in government today could be in opposition again tomorrow, itself trying to use the Act effectively, as it has so often done before. There may be a few faintly hopeful signs. The restlessness of Tory MPs on the House ethics committee regarding the ATIA has been noted. There has been more information release on at least one front: on the Government of Canada’s homepage is a link to the ‘Proactive Disclosure‘ webpage of the Treasury Board Secretariat; here one can read the texts of contracts and the detailed travel and hospitality expenses for ministers and their staff.91 One hopes this will be the start of a larger trend. As well, since being admonished by the Manley panel for not being open enough with the Canadian public about the Afghanistan mission, Prime Minister Harper promised to try to do better. It was reported that he was at pains during a rare news conference in February

90 John Grace, Information Commissioner of Canada, Annual Report, 1993-94 91 http://www.tbs-sct.gc.ca/pd-dp/gr-rg/index_e.asp

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2008 at the National Press Theatre to show he had taken the critiques to heart: ‘As I say, we do accept the criticisms and we are looking to improve on that and several other fronts.’92 Could one of these fronts be positive ATIA reform? To raise Canada’s ATIA to global standards would at last fulfill the vision of Barry Mather, the British Columbia former journalist and MP, who introduced our first parliamentary access bill in 1965. As we have seen, foreign activists such as Anna Hazare and Ivan Pavlov perceived the FOI cause as so important that they are willing to make the ultimate sacrifice for it. Surely Canadians can do better. The idea of freedom of information is a rising tide across the globe, lifting the smallest boats. It was noted earlier how some citizens had well used their FOI laws, such as villagers in India who thwarted profiteering by corrupt local ration dealers, and parents in Thailand who compelled universities to admit applicants based on merit rather than nepotism. Innumerable other cases could have been cited. From such examples, one may realize that while debating esoteric points of Canadian FOI law - for instance, the competing definitions of cabinet memorandrum versus background paper, or whether the ATIA’s intergovernmental records exemption should be limited to affairs or just negotiations – that there is a fact that one can easily lose sight of but what would ideally remain the primary focus: how often freedom of information is not about documents in filing cabinets nor data in digital storage, but about real issues impacting everyday people. - Stanley L. Tromp, Vancouver, British Columbia, Canada September 15, 2008

92 Government Openness Scrutinized; Complaints Double; Lack of access to information cited, by Norma Greenaway. National Post, Feb. 4, 2008

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Chapter 1 ~ The Best Guarantee

The Constitutional Status of FOI

Should the national constitution include the public’s right to know?

‘I have argued for a number of years that the right to privacy should be specifically articulated in the Canadian Charter of Rights and Freedoms. So should the public's fundamental right of access to all government information. Only the establishment of such explicit constitutional rights to these basic democratic anfd human values will make possible legal challenges to governmental practices that threaten our fundamental interests as citizens. What is considered essential for

Hungarians in a free society should be de rigueur for Canadians as well, federally and provincially.’

- David Flaherty, British Columbia Information and Privacy

Commissioner, annual report 1996-97

______________ The year 1982 was historically a banner one for Canada, for it marked two essential steps forward in the political maturity of this nation. The British Parliament passed the Canada Act 1982, granting Canada the authority to amend its own Constitution, a key measure of political independence. Later that year, also in the term of Liberal Prime Minister Pierre Elliot Trudeau, the Canadian Parliament passed the Access to Information Act, which gave Canadians the legal right to obtain government records. Should these two vital concepts be joined more explicitly in law? Sec. 2 of the Canadian Charter of Rights and Freedoms - which forms the first part of the Constitution Act, 1982 - guarantees freedom of expression, but not an explicit right to seek and obtain government information, a right granted in the constitutions of nearly 50 other nations. Still, several Canadian court rulings have described the right as ‘quasi-constitutional.’93 This term is sometimes claimed to apply to the Access to Information Act insofar as its text states that the ATIA operates 'notwithstanding any other Act of Parliament.' For many observers, ‘quasi-constitutional’ is inadequate. Although constitutions may be written or unwritten, and may depend on explicit rules or unspoken conventions, a

93 See for example, ‘the Access to Information Act is quasi-constitutional legislation’ statement in Mr. Justice McKeown, AG of Canada and Hartley v. Information Commissioner of Canada, F.C., February 1, 2002. As well, the Federal Court of Canada, relying on the Supreme Court of Canada in Dagg v. Canada (Minister of Finance), 1997 2 SCR 403, has recognized the ATIA as having ‘quasi-constitutional’ status: Canada (Attorney-General) v. Canada (Information Commissioner) 2004 FC 431 (T.D.)

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written constitution tries to protect rights by entrenched clauses (although this, of course, depends on judicial interpretations). One of these rights should be the right to know. At least two objections might be raised to Mr. Flaherty’s proposal. Firstly, critics might say they do not oppose transparency rights in principle, but argue that such a constitutional amendment is redundant and unnecessary, since these rights are already enshrined in the Access to Information Act. FOI advocates might counter that the ATIA is both a woefully ineffective statute and regularly disregarded in practice; moreover, a solid constitutional underpinning is essential because future administrations could amend the ATIA to weaken it far more easily than they could ever amend a constitution, the supreme law that overrides all others. Such a broad overriding principle is also needed if an agency undermines the spirit of a freedom of information statute in practice by fixating on its letter. Secondly, critics might assert that such a constitutional amendment may be too powerful, granting citizens a right that might override other rights of equal or greater importance. Advocates might counter that the public’s right to know would not be absolute and unlimited; courts would weigh this new Charter right against other values and needs. If government worry that the right could in certain cases grants a citizen too much information - for instance, when record disclosure might harm national security or others’ personal privacy - it could invoke the Charter’s limitations clause.94 This clause has already been used successfully by government to override citizens’ rights to voice racist speech. It is also very similar to South Africa’s Bill of Rights Sec. 36, which can override Sec. 32 of that nation’s Constitution of 1996 guaranteeing the right to information. If Canada had a long tradition of judicial rulings favouring government transparency, or had long practiced the concept according to an unwritten constitution, the argument for a written constitutional guarantee might not be as compelling. But such is not the case. Such a new constitutional right might enable an applicant to appeal in court – as a last resort - against such obstacles as a systemic over-application of ATIA exemptions, the wrongful exclusions of quasi-governmental entities from the Act’s scope, or the pernicious trend of clauses in other statutes overriding the Act (per ATIA Sec. 24). Although a constitutional amendment would require the consent of the provinces, it could be proposed by the government of Canada, or in a private members bill by a member of parliament or a senator. Transparency advocates might argue that the benefits are reciprocal, that is, if national leaders entrust the people with such a basic right, it is likely that the people in turn will trust their leaders, and political alienation may be reduced.

94 ‘1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.’

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Global Commentary95

• London based human rights organization Article 19, Principles of Freedom of

Information Legislation, 1999, endorsed by the United Nations:

‘Principle 1. Ideally it should be provided for in the Constitution to make it clear that access to official information is a basic right.’ • United Nations Development Agency (UNDP), Right to Information Practical

Guidance Note, 2004:

‘Key question: Is there any constitutional guarantee for the right to information?’

Other nations More than half of the nations with FOI statutes96 – that is, 42 out of 68 - explicitly grant the public some right to obtain government information in their constitutions or bill of rights: Albania, Austria, Belgium, Bulgaria, Chile, Columbia, Croatia, Czech Republic, Ecuador, Estonia, Finland, France, Georgia, Greece, Hungary, Indonesia, Latvia, Lithuania, Macedonia, Mexico, Moldova, Netherlands, New Zealand, Norway, Panama, Peru, Philippines, Poland, Portugal, Romania, Serbia, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Tajikistan, Thailand, Uganda, Ukraine, Uzbekistan. Eight of the 27 nations with FOI bills in the draft stages nonetheless have the right noted in their constitutions or bill of rights - Belarus, Brazil, Costa Rica, Guatemala, Kenya, Malawi, Mozambique, Paraguay. I did not search in the constitutions of nations without FOI laws or draft bills,97 but according to one publication, about 30 states without an access statute nonetheless have a freedom of information clause in the constitution.98 In particular, and as noted in a global

95 Notes on the sources for all Commentaries and FOI statutes – with internet links - will be found at the end of this report. 96 When reading foreign FOI statutes, we must bear in mind the possibility that, despite a translator’s most serious efforts, some meanings could still be ‘lost in translation,’ a dilemma that could be accentuated by the fact that legal usage of words can differ from their common usage. 97 The ‘ATIA’ is Canada’s version of a national ‘FOI’ law; throughout this report, I use the terms ATIA and FOI interchangeably. 98 Anti-Graft War Elusive Without Freedom of Information Law. The Nation. Sept. 20, 2007. Overall about 80 constitutions in the world have a freedom of information clause; more than half the countries with a transparency clause in the constitution have gone further and implemented the clause by passing an FOI law. ‘This is important as many constitutional clauses do not ordinarily specify the content of freedom of information. Legislation is usually needed to give

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study by Privacy International, most of the post-1990 constitutions have such a clause. Even some of the older constitutions that did not previously have such a clause have recently been amended to protect the right to information (e.g., in Panama, Mexico). Many nations that have been transformed from dictatorships to democracies, most notably in Eastern Europe, have found it valuable to empower their citizens with this human right in their new constitutions. In these countries the transparency concept has an urgency that many Canadians with a much narrower range of experiences may find difficult to appreciate. Sandra Colivar, Senior Legal Officer of Open Society Justice Initiative,99 noted five outstanding examples:

- Several courts have interpreted the right to information to be an implicit component of the right to freedom of expression, as guaranteed in the constitution.100 - South Africa’s Constitution recognizes the importance of the right to information in exercising and protecting all other rights. - Some constitutions note the particular importance of the information right for journalists and the media.101 - Colombia’s Constitutional Court has noted the close relationship between the right to information and the rights of victims of serious human rights violations to truth, reparation and justice.’

- India’s Supreme Court concluded that the right to know arises not only from the right to freedom of expression but also from the right to life, as guaranteed in the constitution.

content to the right.’ (Incidentally, the United Kingdom, Canada’s parliamentary model, has an FOI law but no written constitution per se at all.) 99 Sandra Colivar, Senior Legal Officer, Open Society Justice Initiative website, New York, 2008. www.justiceinitiative.org 100 For instance, South Korea’s Constitutional Court ruled that the right to information is implicit in the right to freedom of speech and press, given that free expression and communication of ideas requires free formation of ideas as a precondition, and that ‘a [f]ree formation of ideas is in turn made possible by guaranteeing access to sufficient information.’ 101 For instance, Article 81 of Ecuador’s Political Constitution mandates: ‘The state shall guarantee the right, in particular for journalists and social commentators, to obtain access to sources of information; and to seek, receive, examine, and disseminate objective, accurate, pluralistic, and timely information, without prior censorship, on matters of general interest, consistent with community values.’

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Yet Canada’s situation is characteristic of the Commonwealth, in which just a few nations with FOI laws or draft bills also have a specific constitutional guarantee for government information: in Jamaica, New Zealand, South Africa, Uganda, Malawi, Mozambique, Papua New Guinea, Tanzania (The first four nations on this list have also passed FOI laws, while the last four have draft FOI bills.) There may be several reasons for this Commonwealth scarcity. For instance, in 1987 two Canadian political scientists issued a caution, one that would likely be echoed by the federal government:

Access to information is a new, experimental field of public law. There are constitutional and practical limits to how far and how fast we can move toward greater openness in government. The experiences of countries like Sweden and the United States may not provide clear lessons for Canada because their political systems and traditions re different. Some measure of secrecy appears to be inherent in a cabinet-parliamentary system with a neutral, career public service.102

Still, Canada should consider that in New Zealand, Sec. 14 of the Bill of Rights Act (1990) states that ‘Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.’ The New Zealand Court of Appeals said in 1988 that ‘the permeating importance of the Act [NZ Official Information Act] is such that it is entitled to be ranked as a constitutional measure.’103

______________ It is not widely known that several transparency guarantees were enshrined long before Canada was even established as a nation. Sweden enacted the world's first Freedom of Information Act in 1766, as one of four fundamental laws that make up the Swedish Constitution. In France, Art. 14 of the 1789 Declaration of the Rights of Man called for access to information about the budget to be made freely available. In the Netherlands, the 1795 Declaration of Rights of Man stated, ‘That every one has the right to concur in requiring, from each functionary of public administration, an account and justification of his conduct.’ Guarantees of public transparency in national constitutions date back to 1945 for Indonesia, to 1949 for Costa Rica, and the 1970s for Mexico, Portugal and Spain. The specifics of the guarantees vary widely amongst nations, providing one with a range of possible models; amongst the strongest are found within the constitutions of Portugal, South Africa, Greece, Mexico, and the Philippines.

102 Robert F. Adie and Paul G. Thomas, Canadian Public Administration: Problematical Perspectives. Scarborough: Prentice-Hall, 1987. 103 Commissioner of Police v Ombudsman [1988] 1 NZLR 385 http://www.freedominfo.org/countries/new_zealand.htm

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Some constitutions inadequately grant only a citizen’s right to ‘receive’ and distribute information, but not to obtain it. Several are lengthy and attempt to be comprehensive, while others are much shorter, such as Art. 16 of the Constitution of Macedonia which simply provides that:

The freedom of speech, public address, public information and the establishment of institutions for public information is guaranteed. Free access to information and the freedom of reception and transmission of information are guaranteed.

Most of the guarantees contain some qualifiers, such as that of Columbia’s Constitution, Art. 74: ‘Every person has a right to access to public documents except in cases established by law.’104 Several constitutions detail what exceptions there are to the general transparency right (e.g., privacy, national security), while others do not. It is also important to note that a few constitutions, such as those of Slovakia and Ukraine, make special mention of the public right to environmental information, a pressing global concern for the foreseeable future. Latvia’s Constitution, Art. 115, prescribes: ‘The State shall protect the right of everyone to live in a benevolent environment by providing information about environmental conditions….’ Most such constitutional guarantees regrettably mention only government departments, and not quasi-governmental entities or companies that manage public affairs. An outstanding exception is found in Art. 61 of the Polish Constitution, which mandates that

(1) A citizen shall have the right to obtain information on the activities of organs of public authority as well as persons discharging public functions. Such right shall also include receipt of information on the activities of self-governing economic or professional organs and other persons or organizational units relating to the field in which they perform the duties of public authorities and manage communal assets or property of the State Treasury.

Canadian provinces Only one province has attempted to grant a kind of constitutional status to the public’s right to know. Quebec’s Charter of Human Rights and Freedoms states in Sec. 44: ‘Every person has a right to information to the extent provided by law.'

104 In Columbia’s case, it is also interesting to learn that ‘Access to information is more common under the constitutional right of Habeas Data than under the 1985 [FOI] law.’ This nation has an impressive history of transparency: Colombia’s 1888 Code of Political and Municipal Organization allowed individuals to request documents held by government agencies or in government archives. http://www.freedominfo.org/countries/colombia.htm

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This Charter (Charte des droits et libertés de la personne) is a statutory bill of rights and human rights code adopted by the National Assembly of Quebec in June 1975. It ranks among other quasi-constitutional Quebec laws, such as the Charter of the French Language and the Act respecting Access to documents held by public bodies and the Protection of personal information (1982).

Having precedence over all legislation (including Quebec’s FOI statute), the Quebec Charter stands at the pinnacle of Quebec's legal system; only the Canadian Charter of Rights and Freedoms, as part of Canada's Constitution, enjoys priority over the Quebec Charter.105

105 The Quebec Charter is termed quasi-constitutional because, according to Sec. 52, no provision of any other act passed by the Quebec National Assembly may derogate from its provisions, unless such act expressly states that it applies despite the Charter. It does not apply to federally regulated activities in Quebec, for those are subject to the Canadian Charter of Rights and Freedoms and/or the Canadian Human Rights Act.

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Chapter 2 ~ Foreign Affairs

Who may apply

Should non-citizens be permitted to use a national FOI law?

A generally overlooked but significant topic is the question of just who is permitted to file a freedom of information request.

The right of all people regardless of their citizenship to make access requests is the accepted international standard, included in the FOI laws of 51 of 68 nations, including that of Canada’s parliamentary model, the United Kingdom.

But not in Canada’s Access to Information Act. Thus the Polish news media would not be able to file an ATIA request to Canada regarding the 2007 death of a Polish traveler in the Vancouver airport following a taser electrocution by police, yet the Canadian press could do so to Poland if the same tragic fate befell a Canadian traveler in that country, for Poland’s FOI law allows ‘anyone’ to access records. This is surely an unjustifiable situation, for actions in one nation often profoundly impact the people of other nations. The London-based human rights organization Article 19 noted that such broader access might well assist researchers from abroad to reveal information to the overall benefit of people of the FOI host nation, and that governments need not fear added costs or hardships due to foreigners' access requests:

Non-citizens may well play a role in promoting accountable, good government, for example by exposing corruption in the procurement of arms from abroad…. there are few risks or costs associated with extending the right in this way, as evidenced by the experience of the many other countries which do this. In practice, only few non-citizens can be expected to make requests for information, so little burden will be imposed on public authorities.106

In a world ever more integrated and interdependent in the context of the internet age, many topics could be a subject for an FOI request to another country. One obvious example would be that of unknown pollutants being expelled into the river of a neighbouring country, with that river then flowing into the FOI applicant’s nation. Others might entail global warming and climate change, aquaculture and agriculture, human and plant diseases, the tracking of harmful or endangered animal species, overfishing, pesticide use, organized crime, terrorism, arms dealing, international trade, and the treatment of one nation’s emigrants, workers and tourists abroad. 106 Memorandum on Nepal’s Freedom of Information Bill 2063 (2006), by Article 19, London, 2006. Commissioned and endorsed by the United Nations Education, Scientific and Cultural Organization (UNESCO)

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In my research for news stories I have used the FOI laws of other nations successfully, on topics that affected Canada, such as coastal pollution and international political relations. Requests could also be made by academics and historians, or those with a personal concern such as stymied prospective immigrants.107 A simple amendment to the ATIA to permit ‘anyone’ to file requests would render this possible.

• Canada’s Access to Information Act, 1982:

To file an ATIA request, the applicant must be a citizen or permanent resident of Canada, under Sec. 4(1). But Sec. 4 (2) adds ‘The Governor in Council may, by order, extend the right to be given access to records under subsection (1) to include persons not referred to in that subsection and may set such conditions as the Governor in Council deems appropriate.’

All other individuals and corporations ‘present in Canada’ have been added, by cabinet order, as additional classes of eligible requesters. (Information Extension Order No. 1, SOR/89-206.) Treasury Board states that ‘present in Canada’ means physically situated in the country, at the time the information request is made and access is given. (See Treasury Board of Canada Secretariat, Implementation Report No. 19 - July 6, 1989.) Proof of applicant status is not required. But for now, non-citizens who are not present in Canada may not file ATIA requests.

Global Commentary

• United Nations International Covenant on Civil and Political Rights (1976), Article 19, international law, ratified by 35 states: “Everyone shall have the … freedom to seek, receive and impart information.”

• The Johannesburg Declaration of Principles, adopted in 1995 at a gathering of experts in international law, national security, and human rights:

'Principle 1: Everyone has the right to obtain information from public authorities.’ 107 In filing access requests abroad, the applicant often faces the very daunting barrier of exemptions in FOI laws for ‘disclosure that may harm international relations’ (besides the other exemptions), which are frequently over-applied from an abundance of caution and the anticipation of displeasure from the foreign state. All the Canadian provinces’ FOI laws have an equivalent of this exemption, and federally the ATIA includes the discretionary Sec. 15 -International affairs and defense - an exemption that requires amendment to include a public interest override and time limits. (Another topic of much current dispute, although beyond the scope of this paper, is the very pressing need for more transparency in multinational organizations that can wield great influence in member nations, such as NATO and the World Bank.)

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• Article 19, Model Freedom of Information Law, 2001:

‘3. Everyone shall have the right to freedom of information, including the right to access information held by public bodies, subject only to the provisions of this Act.’

• Council of Europe, Recommendations on Access to Official Documents, 2002:

‘Member states should guarantee the right of everyone to have access, on request, to official documents held by public authorities. This principle should apply without discrimination on any ground, including that of national origin.’

• African Union, Declaration of Principles of Freedom of Expression in Africa, 2002:

‘Everyone has the right to access information held by public bodies.’ (As well, the 1981 African Charter on Human and People’s Rights, states in Art. 9 (1) ‘Every individual shall have the right to receive information.’)

• Commonwealth Human Rights Initiative, Open Sesame: Looking for the Right to

Information in the Commonwealth, 2003:

‘Any person at all should be able to access information under the legislation, whether a citizen or not.’

• Arab League, Arab Charter on Human Rights, 2004:

‘Article 32 (a). The present Charter guarantees the right to information and to freedom of opinion and expression, as well as the right to seek, receive and impart information and ideas through any media, regardless of frontiers.’

• Open Society Justice Initiative, International Law and Standards on Access to

Information, 2004:

‘3. Anyone may request information without having to specify grounds. All persons, whether or not they are citizens of a given country or resident there, should be able to file information requests and should not have to provide grounds or reasons for their request: the right of access to information is a fundamental human right which can be exercised by all, regardless of frontiers…. Information requests shall be treated equally without discrimination with regard to the requestor.’

• Organization for Security and Co-operation in Europe (OSCE), Access to

information by the media in the OSCE region: trends and recommendations, 2007:

‘All participating States should adopt freedom of information legislation that gives a legal right to all persons and organizations to demand and obtain information from public bodies and those who are performing public functions.’

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Other nations As noted, the right of all people regardless of their nationhood to make access requests is the global standard, present in the FOI statutes of 51 of 68 nations. While usually stated simply as ‘everyone’ or ‘anyone’ may make a request, sometimes the right is detailed further, as in Armenia’s Law on Freedom of Information, Art. 6.2: ‘Foreign citizens can enjoy the rights and freedoms foreseen by the following law as defined by the Republic of Armenia Law and/or in cases defined by international treaties.’

There is a qualification in three FOI laws, those of Turkey, Taiwan and the Chinese municipality of Guangzhou. The last asserts in Art. 33: ‘Citizens and organizations of foreign countries and regions that impose restrictions on the right of Chinese citizens or organizations to have government information made public shall be treated reciprocally in respect of their right to have government information made public by the Chinese government.’

It is noteworthy that if the American national FOIA law, for example, had such a restriction, then Canadians could not make FOI requests to the United States (as they so often do), since Canada’s ATIA does not extend Americans the same right.

This tit-for-tat reciprocity principle might not seem unreasonable at first sight, until one considers the justness of penalizing a would-be applicant for the failings of his or her own government’s FOI statute, flaws entirely beyond the applicant’s control. It would also create a barrier to the publication by foreign journalists of news that could be of vital concern to the people of the FOI-host country (e.g., on cross-border health or environmental risks), news that is easily read abroad when posted on the internet.

Canadian commentary

• Bill C-39, introduced by NDP MP Barry Mather, Canada’s first freedom of

information bill, 1965:

‘1. Every administrative or ministerial commission power, and authority shall make its records and information concerning its doings available to any person at his request….’

• Open and Shut, report by MPs’ committee on Enhancing the Right to Know, 1987:

‘2.9. The Committee recommends that any natural or legal person be eligible to apply for access to records under the Access to Information Act. The location of the applicant should no longer be relevant.’

• John Reid, former Information Commissioner of Canada, model ATIA bill, 2005:

‘5. (1) Subsections 4(1) and (2) of the Act are replaced by the following: 4. (1) Subject to this Act, but notwithstanding any other Act of Parliament, any person has a right to and

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shall, on request, be given access to any record under the control of a government institution.’

• Bill C-556, introduced by Bloc Quebecois MP Carole Lavallée, 2008:

‘4. (1) Subsections 4(1) and (2) of the Act are replaced by the following: 4. (1) Subject to this Act, but notwithstanding any other Act of Parliament, any person has a right to and shall, on request, be given access to any record under the control of a government institution.’

Canadian provinces There is one historical curiosity. In earlier days, the Newfoundland and Labrador Freedom of Information and Protection of Privacy Act (1981) - the only provincial FOI law to ever do so - restricted the access right to: ‘4. (c) a permanent resident of Canada within the meaning of the Immigration Act, 1976 (Canada), domiciled in the province.’ But this clause is missing from the revised version of that Act, and today anyone may request records under the Newfoundland law.

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Chapter 3 ~ Achieving Results

Oversight and Enforcement

Should an FOI appellate body have the power to order the release

of information? What other powers should it have?

‘A Conservative government will:

‘Subject the exclusion of Cabinet confidences to review by the Information Commissioner.

Give the Information Commissioner the power to order the release of information.’

(Promises not fulfilled.)

- Conservative Party of Canada, election pledge, 2006

______________ What is the meaning of enhanced rights in an improved Access to Information Act if the rights themselves cannot be enforced, and in a timely manner, for an applicant with few resources? The powers that the state should grant to an independent appellate body, such as an Information Commissioner, to order the government to release information against its will, and to take other measures, is perhaps the most contentious, controversial and misunderstood topic in the field of freedom of information reform. Such order-making power is also the single most urgently-needed procedural amendment to the ATIA. Such was promised by the Conservative Party in 2006, now the party forming the federal government, but has remained a promise not delivered upon. In Canada, the Information Commissioner may only investigate and recommend to government that information be released to an ATIA applicant, advice that the state can ignore. At first the Commissioner tries to negotiate solutions with government, and the effect of persuasion often succeeds, but sometimes fails. If so, the Commissioner or applicant may then appeal that refusal to federal court, often a long and costly process. Even if the Commissioner in practice automatically appealed to court every time the government refused his or her recommendations, this measure is completely inadequate because - besides being longer and costlier than the order-making option - any future Commissioner could simply drop such a voluntary practice if it is not enshrined in law.108

108 Even the concept of ATIA judicial review was vigorously challenged by the government before the Act was passed in 1982, and one text summarizes the arguments made: ‘Even though an information commissioner might not have the authority to order ministers to release information when they refused to do so, the normal political pressures (such as daily question period and

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When drafting the ATIA, because Parliament wished to avoid litigation as much as possible, it chose a two-tiered redress process made up of an ombudsman making recommendations and judicial review before the Federal Court.109 Yet to insist that lawmakers must choose between one commissioner model or the other – i.e., ombudsman or adjudicator - is a false dichotomy, for one official could perform both functions well. Relations between the Commissioner and the federal government have sadly declined to a state of deep mistrust and acerbic litigation. In the past decade the Commissioner has been subjected to at least two dozen governmental lawsuits (particularly from the Prime Minister’s Office and the Defence Department) to challenge his authority. While the government claims that conflict results from the Commissioner being invested with too much power, Professor Alasdair Roberts (a leading Canadian academic authority on the subject) asserts just the opposite:

In fact, the recent deterioration in working relationships is more accurately regarded as the consequence of an Act that makes the Commissioner too weak, rather than too strong. The Commissioner lacks the power to resolve complaints authoritatively, and is therefore obliged to rely on subpoenas and public advocacy to promote compliance with the law…. There is substantial evidence that the enforcement strategy contained in the Act has failed. . . . 110

He supports the principle of order-making power as one path to an effective ATI system, and even the mainly traditionalist 2002 report by the Treasury Board and the Department of Justice on ATIA reform selects this option:

related media coverage) would induce ministers to comply in most instances.’ (Robert F. Adie and Paul G. Thomas, Canadian Public Administration: Problematical Perspectives. Scarborough: Prentice-Hall, 1987) Such claims of the power of political pressure are utterly unrealistic. 109 One newspaper editorial saw at least two merits in the Commissioner’s function: ‘The chief merit of having disputes examined by the commissioner system, and by equivalent agencies at provincial level, is that most complainants incur no cost. As well, the federal commissioner's office issues regular "report cards" on agencies that have been conspicuously stubborn about divulging information, and the net effect appears to be an improved response rate.’ (Arsenal of tools can delay or block release of information. Montreal Gazette, Sept. 22, 2007) 110 Alasdair Roberts, New Strategies For Enforcement of The Access To Information Act Queens Law Journal 647. January, 2001. He adds that, ‘Adversarialism may be an inevitable consequence of a statutory scheme that puts great weight on “moral suasion” rather than the adjudication of disputes. An adjudicator must carefully restrain his comments on the conduct of government institutions, in order to avoid claims of bias in the application of the law. On the other hand, an ombudsman is free – indeed, expected – to define his function as one of advocating vigorously on behalf of the principle of transparency.’ http://www.aroberts.us/documents/journal/Roberts_QLJ_2002.pdf

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In the final analysis we believe that the structural model in place in most jurisdictions, a quasi-judicial body with order-making powers combined with a strong mediation function, would best achieve this [dispute resolution]. In our view, it would be the model most conducive to achieving consistent compliance and a robust culture of access. We encourage government to give serious consideration to moving to such a model in the medium-term…. As administrative tribunals, under the scrutiny of courts, they are subject to high standards of rigour in their reasons and procedural fairness…. It is an economical model for taxpayers and for requesters, with more than 99 per cent of all complaints being resolved without recourse to the courts.111

There are other advantages to the order-making model, noted by Murray Rankin: ‘Credibility among requesters is much greater when the government is ordered to disclose information. The clarity and consistency of the resulting jurisprudence is enhanced through the wide dissemination of orders.’112 One doubts there will be any other ATIA reform so politically daunting to achieve as full order making authority, for it indeed represents a significant ceding of power. For one thing, some sectors of government intensely oppose this measure on the argument that the Commissioner (and his or her delegates) are ‘generalists’ who lack the very ‘specialized’ expertise supposedly needed to understand the ‘complex’ harms that release of information could cause to their sectors, e.g., on certain commercial, policing or security-intelligence matters. If so, one might just as well bar ‘generalist’ Supreme Court judges from ruling on ATIA cases on the same grounds, yet such an argument would hardly be accepted. At the very least, another possible model is the one recommended by the 1987 Parliamentary Committee report Open and Shut, which would split the Information Commissioner’s powers in two streams. His or her recommendations would bind government institutions with respect to process issues such as delays and fee waivers. However, only the Federal Court would retain the power to order the disclosure of

111 Treasury Board Secretariat and Department of Justice, Access to Information: Making it Work for Canadians; Report of the Access to Information Review Task Force. Ottawa, 2002. Appended with 29 research reports. http://www.atirtf-geai.gc.ca/report2002-e.html The report concludes that: ‘However, because it [Ombudsman model] it is a model mostly designed for the case-by-case resolution of disputes, it is less likely to result in the consistent approach and clear rule making that seem to be required now. Moreover, the strengths of the ombudsman model, relying on influence, moral suasion and informality to ensure compliance and effect behavioural change, have been less evident in the last few years.... it can be argued that there is now a need for the increased coherence, rigour and transparency that are more likely to be achieved in an order-making model.’ 112 Murray Rankin, The Access to Information Act 25 Years Later: Toward a New Generation of Access Rights in Canada. A report for the federal Information Commissioner’s office, Ottawa, June 2008

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records. ‘This model may possibly be useful in a transition toward a full order-making model,’ notes the 2002 Treasury Board report.113 Such order powers are better than none at all. As an interim, transitory, or experimental measure, the Canadian government, at a minimum for now, would do well to grant this order power on procedural issues, then later give the Commissioner the same power for record release. In the meantime, Information Commissioner Robert Marleau has a straightforward recommendation to help repair the system - legislate improvements to speed up access requests. He also wants the ability to try to mediate some complaints as opposed to launching into full and costly investigations. As well, Commissioner Marleau believes restrictions should be loosened so he can publish more details of his investigations so there would be a body of rulings to serve as a guideline for the government and the public.114 These ideas are all commendable.

______________

• Canada’s Access to Information Act, 1982:

The applicant may (not must) try to negotiate an agreement with the public body before appealing to the Information Commissioner. Under Sec. 30, applicants have within 60 days (shortened in 2006, from a right to appeal within one year) of receiving an unsatisfactory response from the public body, to appeal to the Commissioner about fees, delays, exemptions or any other issue. There are no time limits set on the Commissioner’s processes. The Commissioner may also initiate an investigation on any issue, without prompting from a complainant. The Commissioner has investigatory powers to summon witnesses, compel them to testify under oath and produce records in the same manner as a superior court of record; to enter any government premises; to examine or obtain copies of or extracts from records found there. The Commissioner may only make recommendations, not orders, on any ATIA related matter. If the Commissioner rejects the applicant’s request, the applicant has the right (in Sec. 41) within 45 days of receiving the Commissioner’s report to appeal to Federal Court - and, on that court’s ruling, to Federal Appeal Court, and then to the Supreme Court of Canada. The government may do the same if its arguments are rejected. The Commissioner may, and often does, appeal to court on the applicant’s behalf. The courts may examine records, consider the issues de novo, and issue binding orders.

113 TBS, Making it Work, ibid 114 Access requests bogged down by PM's officials, by Campbell Clark. The Globe and Mail. Toronto, Ontario. Dec. 24, 2007

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Since the government states that cabinet records are excluded from the scope of the Act entirely, the Commissioner and the Federal Court cannot even review them. Yet the Commissioner now has the power to examine a record held in the office of a minister or the Prime Minister’s Office (except a cabinet confidence) for the purpose of determining threshold issues such as whether the record is a departmental record, a personal record or a political record. The Commissioner’s power in this regard was confirmed by the Federal Court of Appeal in 2004 when former Prime Minister Chrétien refused to turn over his daily agenda books to the Commissioner.

______________

Global Commentary

• Article 19, Principles of Freedom of Information Legislation, 1999, endorsed by the

United Nations:

'Upon the conclusion of an investigation, the administrative body should have the power to dismiss the appeal, to require the public body to disclose the information, to adjust any charges levied by the public body, to fine public bodies for obstructive behaviour where warranted and/or to impose costs on public bodies in relation to the appeal.’

• Commonwealth Human Rights Initiative, Open Sesame: Looking for the Right to

Information in the Commonwealth, 2003:

‘Powerful independent and impartial bodies must be given the mandate to review refusals to disclose information and compel release.’

• Commonwealth Parliamentary Association, Recommendations for Transparent

Governance, 2004:

‘(12.2) The independent administrative body should have the power to hear appeals from any refusal by a public body to provide information, along with all necessary powers to effectively exercise this role. This should include the power to mediate disputes, to compel evidence and to review, in camera if necessary, the information which is the subject of the request, to order the disclosure of information, and, where appropriate, to impose penalties.’

• Organization for Security and Co-operation in Europe (OSCE), Access to

information by the media in the OSCE region: trends and recommendations, 2007:

‘There should be an adequate mechanism for appealing each refusal to disclose. This should include having an independent oversight body such as an Ombudsman or Commission which can investigate and order releases.’

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Other nations The FOI statutes of 17 out of 68 other jurisdictions grant an independent administrative appellate body the power to order government to release information (the last six on this list being in the Commonwealth): Estonia, Iceland, Indonesia, Ireland, Macedonia, Mexico, Serbia, Slovenia, Thailand, Turkey, Pakistan, India, Jamaica, New Zealand, Scotland, United Kingdom, and Zimbabwe. The power is most notable in the United Kingdom, Canada’s parliamentary model and for decades one of the most secretive nations in the Commonwealth, and in Pakistan, the world’s sole military dictatorship with an FOI law. Most of the FOI appellate bodies are similar to Canada’s Information Commissioner’s office, although in some parts of the world, the task is managed by an Ombudsman, Tribunal, Institute, or other.

THE SCOTTISH APPROACH - a Note for Canadian Readers

Scotland's Freedom of Information Act came into effect in 2005. Scottish Information Commissioner Kevin Dunion opens doors. In Scotland they describe what he does as ‘to dunion,’ - as in, ‘you've been dunioned’. He is asked to break through bureaucratic prevarication to release secrets at twice the rate of requests in the rest of the UK.

Mr. Dunion was aware government, wanted him to regard using his enforcement powers as a last resort. ‘That's entirely the wrong way to go about it. I'm not an ex-civil servant. My background is as a campaigner and a troublemaker. . . . I can enforce my decisions. If an authority has not been co-operative, I'm able to issue an information notice which, if it's not responded to, I can refer to the court. To not respond is the same as contempt of court, so there is always that very strong legal stick.’

‘The act gives people rights and people would be quite rightly entitled to criticize me if I was given powers to pursue my investigations and I declined to use them for fear of upsetting authorities.’ That makes Mr. Dunion hard-line in enforcing the 20 days that public authorities have to comply with information requests.

This approach makes ‘a palpable difference,’ concluded a New Zealand journalist. ‘In Scotland the freedom of information is seen as something dynamic, to be kept in the public eye. Here [in New Zealand] it's a musty concept gathering dust in out-of-date volumes when bureaucrats get around to writing them up.’

- Firm hand with a big stick, by Chris Barton. The New Zealand Herald, December 22, 2007 http://article.wn.com/view/2007/12/21/Firm_hand_with_a_big_stick/

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Canadian commentary

• Open and Shut, report by MPs’ committee on Enhancing the Right to Know, 1987:

‘4.1. The Committee recommends that the central mandate of the Information Commissioner and Privacy Commissioner to make recommendations on disclosure be confirmed, but that the power allowing the Information Commissioner to make binding orders for certain subsidiary issues (relating specifically to delays, fees, fee waivers, and extensions of time) be provided in amendments to the Access to Information Act.’

• Treasury Board Secretariat, Access to Information: Making it Work for Canadians,

ATIA Review Task Force report, 2002:

‘Full Order-Making Powers. 6-25. The Task Force encourages the government to consider moving to an order-making model for the Information Commissioner in the medium-term. [….] Our research indicates that in Canadian provinces where a full order-making model is in place, requesters and government officials consider it to be very successful. It was also the model overwhelmingly favoured by those who participated in public consultations or made submissions to the Task Force…. ‘ • Justice Department of Canada, 2005, A Comprehensive Framework for Access to

Information Reform: A Discussion Paper:

‘The Government is not persuaded of the need to shift to an order-making or quasi-judicial model for the Information Commissioner, but nonetheless would welcome the views of the Committee on this issue.’

• Justice Gomery report, Restoring Accountability, 2006:

‘It supports broadening the Information Commissioner’s powers to initiate a complaint under the Act and to apply to the Federal Court in relation to any matter investigated by the Office. It also supports allowing the Information Commissioner to grant access to representations made to him in the course of his investigations.’

• Bill C-556, introduced by Bloc Quebecois MP Carole Lavallée, 2008:

’25. (3) Subsection 30(3) of the Act is replaced by the following: (3) The Information Commissioner may initiate a complaint into any matter relating to requesting or obtaining access to records under this Act.

(4) An investigation into a complaint under this section shall be completed, and any report required under section 37 shall be made, within 120 days after the complaint is received or initiated by the Information Commissioner unless the Commissioner (a) notifies the person who made the complaint, the head of the government institution concerned and any third party involved in the complaint that the Commissioner is

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extending the time limit; and (b) provides an anticipated date for the completion of the investigation.

(5) A complaint made under this section in respect of a request made to the Office of the Information Commissioner or in respect of any other matter concerning that office shall be made to and investigated in accordance with this Act by an independent person authorized under section 59.

[…] 27. (1) Subsection 36(2) of the Act is replaced by the following: (2) Notwithstanding any other Act of Parliament or any privilege under the law of evidence, or solicitor-client privilege, the Information Commissioner may, during the investigation of any complaint under this Act, examine any record to which this Act applies that is under the control of a government institution, and no such record may be withheld from the Commissioner on any grounds.

[…] 29. The Act is amended by adding the following after section 37: 37.1 Notwithstanding any other Act of Parliament, a person does not commit an offence or other wrongdoing by disclosing, in good faith to the Information Commissioner, information or records relating to a complaint under this Act.' [Etc.]

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Canadian provinces The Information and Privacy Commissioners in five provinces - British Columbia, Alberta, Ontario, Quebec and Prince Edward Island - have the power to order government to release records.115 These provide successful examples for the drafters of ATIA amendments to consider. As even the traditionalist Treasury Board report of 2002 notes, ‘The order-making model is also compatible with a high proportion of mediated solutions, as is demonstrated by the experience of the provinces.’116 We might add that British Columbia’s 90 percent successful FOI mediation rate would likely not be achieved if the government was cognizant that the B.C. Commissioner had no order-making power, for it is often enough to just wield authority without applying it.

115 In Manitoba, the throne speech of November 20, 2007 announced the ‘appointment of a new privacy commissioner with the power to issue orders under Manitoba's freedom of information and protection of privacy legislation.’ But instead, the government is now proposing a privacy adjudicator, a government appointee who could only act if invited by the Ombudsman to follow up on complaints – a situation that would be unique in Canada. Also, the government proposes to shorten its cabinet records exemption from 30 years to 20. (Province would handcuff freedom of information, by Elizabeth Fleming. Winnipeg Free Press, Sept. 9, 2008) 116 TBS, Making it Work, op.cit.

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Prof. Roberts also observes that Ottawa can learn much from the provincial experience:

At the federal level, the ombudsman model appears to have produced exactly the sort of vices that it was intended to avoid: adversarialism, legalism and formality. Meanwhile, provincial governments have proved the converse: that giving an “order power” to a Commissioner does not necessarily mean that the process of resolving complaints must be rigid and inflexible. ‘Of course, the proper question is whether relations would be any better if the federal Commissioner had a role like that assigned to commissioners in Ontario, British Columbia and Alberta. We can only speculate on this point, however, it is noteworthy that commissioners in those provinces have not experienced a comparable deterioration in relations with senior official. Dissatisfied institutions may ask for judicial review of such orders, but courts are typically reluctant to overturn a Commissioner’s judgment about the application of the law…. 117

Positively, Saskatchewan’s FOI law, in Sec. 58(1) states that: ‘On an appeal, the court: (a) shall determine the matter de novo [….],' i.e., not just on procedural errors. This point could be stated explicitly in the ATIA.

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Supplementary Note - Other Powers

Besides order-making power, there are several other parts of the federal Information Commissioner’s legislated mandate that could be expanded. • The Commissioner could be explicitly granted the power in law to examine and rule upon all records, without exception, including those in the cabinet office and prime minister’s office. • In the ATIA, there are no time limits set on the Commissioner’s processes, and in practice the applicant sometimes waits years for a resolution. By contrast, in British Columbia’s FOI law, if a portfolio officer cannot negotiate a solution within 90 days, the dispute automatically moves to the full inquiry stage. In Nova Scotia the Review Officer must negotiate a settlement within 30 days or conduct a review. In the FOI law of the Northwest Territories, the Commissioner is given six months to complete the review - hardly an unreasonable limit - while the Newfoundland Commissioner has 90 days. (Of course, to render this possible, the Commissioner must be granted adequate resources for the tasks.) Some time limit is surely required for an ATIA settlement, if even a year. In Switzerland, the Commissioner must issue a recommendation within thirty days.

117 Roberts, op.cit.

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• Under ATIA Sec. 30, applicants have within 60 days of receiving an unsatisfactory response from the public body, to appeal to the Commissioner about fees, delays, exemptions or any other issue. This was shortened in 2006, from a right to appeal within one year (a time limit that FOI applicants still retain in Saskatchewan). Six months to appeal would be a fair compromise. • The three first provincial access laws to be passed (in Nova Scotia, New Brunswick, and Newfoundland) grant the FOI applicant the option to appeal directly to court, bypassing the Commissioner or Ombudsman, and the federal government could seriously consider granting this same right to access applicants in a reformed ATIA. Benefits include a quicker resolution if time is urgent for an applicant, and the raising of some legal burden from an overworked Commissioner’s office. The appeal to Commissioner option was created partially as a lower-cost alternative to the courts for applicants with few resources, who may be unaware of the ATIA’s more arcane byways or be unable to afford counsel, and that first option indeed remains valid. But this rationale should not prohibit better-resourced applicants from proceeding straight to trial if they choose. Some applicants can even overcome financial limitations, most notably Ken Rubin, a private citizen and likely Canada’s most effective and prolific ATIA user, who often files his own ATIA lawsuits and successfully represents himself in court.118

Postscript – the Vaughn Index

In the United States, an applicant engaged in a FOIA court dispute may file a formal request asking the court to order the government to give him or her a ‘Vaughn index.’ This index describes the documents it is withholding and the justification it claims for withholding each piece of information (although without revealing the records’ substance, of course). Many applicants have found this index essential for preparing their arguments.

Such a right to some Canadian equivalent of a Vaughn index is clearly needed for Canadian ATIA applicants as well. Although the legal playing field will generally remain unbalanced against the applicant, this process at least gives him or her the potential of a sporting chance instead of aiming quite so much in the dark while preparing arguments.

118 In fact the Commissioner’s office issued a pamphlet to educate the ATIA applicant on how to appeal in court representing oneself, and Colonel Michel W. Drapeau and Marc-Aurele Racicot include such an instructional chapter in their invaluable text, Federal Access to Information and Privacy Legislation, Annotated 2007. Toronto: Thomson Carswell, 2006. Unsuccessful appellants bear a modest risk of being assessed with court costs.

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Chapter 4 ~ Which Players in the Ballpark?

Scope of Coverage

Which public or private entities should be covered by the FOI law?

‘A Conservative government will: Expand the coverage of the act to all Crown corporations, Officers of Parliament, foundations and organizations that spend taxpayers' money or perform

public functions.’

(Promise only partially fulfilled.)

- Conservative Party of Canada, election pledge, 2006

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When is a public body not ‘a public body’? Which records are ‘public records’? How should these concepts be legally defined for freedom of information purposes?

When a private sector or non-profit entity performs public functions, should its records also be open to public scrutiny? All of its records, or just some? Must a company prove that it would suffer injuries resulting from FOI disclosures, or just assert that it would, and prove it how? Even if harms might result, should the public’s right of access be absolute, or must it be balanced against the company’s interests?

These and many other questions have arisen in the past two decades, and the new reality of government restructuring invokes serious doubts as to the viability of the FOI system.

This is the longest chapter in this report (for which I request the reader’s patience) and the subject ideally requires an entire study, because the dilemma of determining which entities should be covered by freedom of information laws is the most complex, amorphous and perplexing topic in FOI theory and practice. In Canada, this definitional limbo has also become one of the most frustrating and indisputably necessary problems to be resolved in a reformed Access to Information Act. In fact, the problem was - and still is - so serious that it was the only one of its eight ATIA reform election promises that the incoming Conservative administration partially kept upon assuming office in 2006.

If a quasi-governmental entity is excluded from the Act’s scope, one may not apply for its records at all, nor obtain them in full or censored forms, at any price, after any time delay, nor appeal the situation with any prospect of success to any appellate body. The other chapters discuss the statutory rules of the FOI ‘game’ (which indeed it is), but in this case those rules are irrelevant, for these entities simply stand outside the ballpark and are not part of the game at all. The process of government restructuring is underway, says Professor Alasdair Roberts, who has written most extensively and perceptively on this topic:

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When it is done, the public sector will look radically different than it did 20 or 30 years ago. Indeed, it may be difficult to speak intelligently about a ‘public sector’ at all …. This process of restructuring has already posed a substantial threat to existing disclosure laws, and this threat will grow in coming years.119

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The question of which entities should be covered by the federal FOI law was already being debated before the Access to Information Act was passed in 1982, as the era of ‘big government’ was fading. Ottawa decided that most crown corporations would be covered, but not all, because supposedly some required ‘special protection’ from their commercial competitors. Such objections of economic injury are illogical and spurious because the ATIA already contains ample protections (most notably Sec. 20, which is itself often over-applied in practice) to protect against such harms. So do most FOI laws in the world. Many other quasi-governmental structures also remained beyond the ambit of the Act, falling into a definitional limbo.

When U.S. President Bill Clinton announced in 1996 that ‘the era of big government is over,’ the trend towards privatization, reduced or self-regulation, and non-profit entities performing governmental tasks had been growing for two decades. Policymakers still steer the ship of state but care less about who ‘rows,’ that is, who delivers the services; the British term this policy ‘the third way’; Roberts calls it ‘structural pluralism.’ When writing on the draft FOI bill of Nepal, the organization Article 19 observed that: ‘Modern governments privatise a wide range of services, even if they are clearly public in nature. Such privatisation should not, of itself, take the activity outside of the scope of a right to information law. Furthermore, if it did, this would be an additional, and clearly illegitimate, motivation for governments to privatise.120 (I emphasize that I do not oppose privatization, per se, only the loss of public transparency that often accompanies it but should not.) During this era of downsizing, more and more traditional government functions - such as airports and air traffic control, postal services, and the provision of blood products - have been transferred out of the civil service. Increasingly, governmental responsibilities are being devolved to multi-governmental partnerships, government-industry consortia, foundations, trade associations, non-profit corporations and advisory groups.121 (It is also

119 Alasdair Roberts, Blacked Out: Government Secrecy in the Information Age. New York: Cambridge University Press, 2006. Chapter 7, The Corporate Veil, is the most interesting for journalists stymied in their FOI requests to view private-public contracts. 120 Memorandum on Nepal’s Right to Information Bill, by Article 19, London, 2006. 121 On the question of the ‘Fourth Sector,’ Canadian charities need not be covered by the ATIA, but government could consider requiring charities under an amended Canada Revenue Agency

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not impossible to envisage that at some future date Canada might choose to partially employ the $100 billion global private defense and security-intelligence industry.) There are three different structures of ‘P3’ partnerships to build prisons in the United States and Australia, and for schools and hospitals in Britain. Potentials for conflicts-of-interest can also be fertile, as officials move between the public and private sectors. The matter is complex indeed, but not insurmountably so. The ATIA applies only to records ‘under the control of a government institution.’ Yet as far back as 1987, ‘concern has been expressed that this wording could lead to the appearance of “information havens” in the form of consulting firms, research institutes and universities under contract with government.’122 For example, the federal government sometimes contracts with the Public Policy Forum, a private entity that is not covered by the ATIA, to aid in policy development.123

The long simmering problem was spotlighted in its worst form when then Liberal finance minister Paul Martin Jr. proudly announced in his 1995 federal budget the creation and funding of several independent foundations to perform key public services. By not including these in the scope of the ATIA, he created gaping vacuums of transparency (although, much later, the Auditor General was granted the right to audit several of these entities).

In 1999 the Auditor General investigated the situation and found that the federal government had entered into at least 51 collaborative arrangements with other levels of government or the private or voluntary sectors to deliver services, at a cost to the federal taxpayer of about $4.5 billion each year, and 26 arrangements where the federal government had delegated decision making to a partner. The Auditor General’s also found that, often, ‘essential accountability mechanisms’ were not in place, such as performance reports to Parliament, complaint and redress

statute to disclosure information to the level required under American IRS charity form 990s, such as the salaries of each employee, loans, itemized expenses, etc. 122 Robert F. Adie and Paul G. Thomas, Canadian Public Administration: Problematical Perspectives. Scarborough: Prentice-Hall, 1987 123 The PPF’s website explains, ‘A 1988 gathering in Calgary served as the defining event for the PPF. Eight federal deputy ministers and twelve CEOs, largely drawn from the oil patch, came together under the PPF's neutral umbrella to talk frankly about the internal workings of government and the constraints under which federal public servants operated.’ Today, the PPF’s board includes deputy ministers, and its activities include holding conferences on Canada's health system, border security, ‘a leaders' roundtable on the Kyoto Accord,’ and taking public submissions on ATIA reform itself. Another is ‘Understanding Government - The PPF offers annual seminars on the agendas of the federal government and some provincial governments, where ministers, deputy ministers and other insiders provide insights into policies and priorities.’ http://www.ppforum.ca Some kind of fuller public transparency on such vital policy development processes should be mandated.

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mechanisms and rules on conflict of interest. But the problem is of a much greater magnitude than the Auditor General reported. In October 2002, an all-party committee of MPs released a list of ‘Crown Corporations and Other Corporate Interests of Canada.’ Of the 246 organizations listed there, only 95 were covered by the ATIA.

The Federal Accountability Act prompted an increase in the number of institutions subject to the ATIA by 70, to bring the total to more than 250. Yet more than 100 entities remain outside the Act’s scope. Among the quasi-governmental bodies still not subject to accountability measures are:

• the Canada Pension Investment Board;

• the Waste Management Organization, a new body that will develop Canada’s long-term plan for handling and storing nuclear waste;

• Canadian Blood Services, which oversees the safety and management of Canada's blood supply;

• the Canadian Institute for Health Information (CIHI);

• Canada Health Infoway Inc. ($500 million);

• Greater Toronto Airport Authority (and other major airport authorities)

• NAV Canada (air traffic controllers); and

• St. Lawrence Seaway Management Corporation

The fact that there is such a vast number of organizations that are creatures of the federal government, funded by taxpayer dollars and tasked with executing public policy or carrying out vital public functions, which nevertheless operate in a no-man’s land of accountability, should be a matter of great concern to all Canadians. The four most troubling exclusions are those of the airport authorities, the agency responsible for the air traffic control, the blood agency and the nuclear waste agency. The wall of secrecy around these bodies poses a potential threat to public safety.

With other entities, it is at least possible to advance some economic arguments worth considering. But the latter two are non-commercial bodies, which makes their ATIA exclusion even more incomprehensible and morally indefensible; the federal government, arrogantly, has not even bothered to advance a full explanation for this situation.

The Nuclear Fuel Waste Act established the new agency the Waste Management Organization (WMO), which allows nuclear waste to be imported into Canada while letting nuclear energy corporations sit on the WMO’s board of directors. The Liberal majority ignored the advice of the Seaborn panel (set up to advise on the WMO's creation) to include it under the ATIA, and also voted down amendments by the Bloc Quebecois and Canadian Alliance parties to include it under the Act; the WMO is not even directly accountable to Parliament.

One can truly say that the exclusion of entities such as these from the Act’s coverage has long been the one Canadian ATIA problem that could fairly be described as a scandal. It is also perhaps the one topic in which Canada stands in the starkest contrast to rest of the

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FOI world community. The New Zealand national blood agency, for example, is covered under that nation’s FOI law. The Canadian problem was noted by the Commonwealth Human Rights Initiative, when commenting on the draft FOI bill of Maldives:

Additionally, to ensure that all bodies funded by public money can be scrutinised using this law, consideration should be given to replicating the definition at s.2(h) of the new Indian Right to Information Act 2005 which covers “any…body owned, controlled or substantially financed…directly or indirectly by funds provided by the appropriate Government”. Otherwise, as has happened in Canada at the federal level, resistant bureaucrats may set up other forms of legal entity to avoid the application of the Act.124

Then, as if all this was not enough, most galling to hear in this context is the recent boasting by the current government on how it has ‘kept its election promises’ on transparency and about the number of entities it has added to the ATIA’s scope.

Change is long overdue. Last July it was reported that ATIA coverage should be extended to all bodies that are run by federal appointees or receive more than 50 per cent of their funding from Ottawa, according to a policy discussion report commissioned by the Treasury Board and prepared by Jerry Bartram and Associates management consulting firm. The ATIA would also include many native band councils, but the report recommends they be given an exemption.125

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Although the right to access records of quasi-governmental bodies can be prescribed in principle, it must be admitted that it is not always clear how such rights would operate day to day; much of this would be worked out in regulations and practice. For the applicant, the first and often most important challenge is that of obtaining the partnership contract itself through an FOI request.

Prof. Roberts notes that the contract is ‘unambiguously a government record’ and not a private one,126 yet both parties often work to keep the contracts secret, governments to

124 Maldives Draft Freedom of Information Bill & Recommendations for Amendments. Analysis by the Commonwealth Human Rights Initiative, CHRI, 2006 http://www.humanrightsinitiative.org/programs/ai/rti/international/laws_papers/maldives/draft_foi_bill_chri_analysis.pdf 125 Report recommends widening scope of access law, by Bill Curry. The Globe and Mail. Toronto. July 26, 2008. The story notes that ‘Patrick Brazeau of the Congress of Aboriginal Peoples said he regularly receives e-mails and phone calls from frustrated band members who can't get access to documents about their leaders.’ (Regrettably the report itself had to be obtained through the ATIA by researcher Ken Rubin, whereas routine release for such a record should have been the obvious course.) 126 Roberts, op.cit.

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avoid scrutiny of how well the contracted process really works, and companies to shield their data from their competitors. (Indeed, in some years in Canada, businesses account for about half of the ATIA requestors, many of them seeking records on their rivals.) Practices are widely varied, and evolving. One Australian state put its prison management contract online, a move that it called a world first; yet Ontario refused an FOI request for its new private highway toll contract, and also its contract with Accenture to manage social services because it argued that it was a unique ‘trade secret.’ Shared records are difficult enough to obtain by FOI, but when information is held by contractors alone, more often there are no rights to such records at all. In the United States there is less regulation but more transparency available for utilities; in Australia the opposite is true. In Britain, even government regulators cannot extract needed information on water, gas and electrical services.

Another question arises: Should it matter where the records are stored? In Canada provincial disputes have arisen over who has both the essential and legally defined ‘custody’ and ‘control’ over ‘shared’ public-private records, and these factors can determine an FOI applicant’s access rights.

Governments can legislate practices but not attitudes. In Canada, many companies simply express zero tolerance for the idea of any of ‘their’ information being released, even the amounts they are paid from taxpayer’s funds, more often from reflex than reasoned consideration. (In British Columbia, one company even wanted to keep private the title page of its government contract, as a ‘trade secret.’) Lengthy and very expensive court actions mounted by the corporate sector for this purpose are by now familiar.127 From longstanding tradition, many companies have come to expect such corporate confidentiality as their right, and some FOI directors too readily defer to their objectives, although this attitude may be gradually diminishing.

By far the most intransigent problem is that dozens of Canadian entities have a ‘shared jurisdiction’ amongst federal, provincial and other governments; since it is claimed that these bodies do not fit the within scope of any one partner’s FOI laws, they fall between

127 As I know, from having worked, on behalf of the UBC student newspaper The Ubyssey, on a five year FOI legal dispute to view the 1995 supply contract between the University of British Columbia and Coca-Cola. The case was won when the newspaper’s lawyers demonstrated in B.C. Supreme Court that at American universities, unlike those in Canada, such contracts are freely publicized even without FOI requests, and with no demonstrable harms incurring. In his influential ruling of 2001, the B.C. Information Commissioner wrote the contract could be released because it contained information not supplied in confidence, but only negotiated in confidence between UBC and the company. He also insisted on specific evidence for potential harms, whereas his predecessor had just accepted broad assertions of harm from the company. http://www.oipcbc.org/orders/2001/Order01-20.html

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the cracks and are covered by none. Examples include the Canadian Centre on Substance Abuse and the Canadian Energy Research Institute. If obtaining consent for FOI coverage from one partner is onerous enough, how much more so to gain it from several? Which partner has legal ‘custody and control’ of the information? There are solutions, though: the federal government should not be able to enter into such arrangements unless it ensures that the records are available under either its FOI law or that of a province, or both. Yet a still more difficult problem to be resolved is that of access to records of international organizations of which Canada is a member.

______________ Even if there was political will for expanded entity coverage, recent responses from the Canadian senior bureaucracy, expectedly, does not bode well for possible action. It is well known that behind-the-scenes lobbying by quasi-governmental entities to stop potential coverage has long been unrelenting (evident from their correspondence obtained through the ATIA and elsewhere). With the lack of an equivalent countervailing public interest voice to speak out, their pleas have found receptive ears in government. For instance, a Justice Department discussion paper of 2005 suggests that even the existing exemptions for business secrets in the ATIA are likely not enough. It proposes that new provisions may be created to protect third party confidential information obtained by various government-owned corporations:

Each provision would be tailored to meet the specific and unique sensitivities of each corporation…. In other words, the provision would be targeted to protecting the core sensitive information that is vital to the competitive position of these corporations without subjecting them to the additional costs of having to prove harm.128

A second Justice Department paper, ironically titled Strengthening the Access to Information Act (2006), seems to erroneously equate public transparency with a loss of political independence:

Making otherwise independent institutions subject to these three pieces of legislation [ATIA, Privacy Act, Library and Archives of Canada Act] could result in an increase in the federal government's apparent or actual control of the institutions and a fundamental change in their status…. For every institution added, there is a need to consider whether the current exemption scheme is sufficient or whether additional exemptions or exclusions may be necessary. It is virtually impossible to make such a determination without consulting the institutions themselves, since they know what information they hold and what kind of protection it requires.... An often overlooked factor that any responsible

128 Justice Department of Canada, A Comprehensive Framework for Access to Information Reform: A Discussion Paper, 2005 http://www.justice.gc.ca/en/dept/pub/ati/

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government must also consider when examining the issue of expanding coverage is the probable cost.129

One could counter that the costs of administering ATIA requests were far overestimated when it was passed in 1982, and also question the concept of placing a price upon a basic democratic right, equivalent to considering whether the public’s right to vote in elections can be afforded or not. In nations with stronger FOI traditions, the public and media response to such governmental arguments cited above could be imagined.

Yet the Treasury Board president said, when adding ten companies to the ATIA coverage in August 2005, ‘The ten Crown corporations will incur minor administrative costs to become compliant with the Acts; however, these costs will be outweighed by increased accountability and transparency.’130

Why does this all matter? Prof. Roberts notes that human rights specialists often make a distinction between two ‘generations’ of human rights: (1) basic civil and political rights, and (2) economic, social and cultural rights. He argues that some of the practices which appear to fall only under the second class are also really covered by the first as well, and so the practices should be open to scrutiny through FOI laws. Private companies, for instance, might be contracted to count votes and to educate children; the public needs to know of, debate, and approve of their activities, which it can only do with accurate information. Some claim that access to government records is a basic ‘human right,’ but not all agree (such as former Canadian Privacy Commissioner George Radwanski, who called FOI a mere ‘administrative right’). For Prof. Roberts, FOI is a ‘derivative right,’ that is, a necessary tool with which to protect human rights. One example would be that of the private Diamondback prison system in America; this entity is excluded from FOI coverage itself, and yet information on potential dangers to local neighborhoods, and on the health of inmates and staff, render public transparency a human right.

In sum, the basic statutory solution in many nations - and which the ATIA would ideally follow - is not for the FOI statute only to list named entities in schedules to the act, but rather to include precise and broader criteria of what kind of entities are covered. A mixed system as in the UK, which uses both options - definitions and listings - might well be implemented; and it could then be noted in a reformed ATIA that covered bodies are those ‘including but not limited to’ those listed in schedules. Hence, when an entity claims not to be covered by the ATIA, an appellate body such as the information commissioner or a court could study the criteria and rule whether it should indeed apply or not in each case.

129 Justice Department of Canada, Strengthening the Access to Information Act: A Discussion of Ideas Intrinsic to the Reform of the Access to Information Act, 2006 http://canada.justice.gc.ca/en/dept/pub/atia/index.html 130 Canada Gazette, Sept. 21, 2005 http://canadagazette.gc.ca/partII/2005/20050921/html/sor251-e.html

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‘The very purpose of the Access to Information Act was to remove the caprice from decisions about disclosure of government records,’ said former Information Commissioner John Reid. ‘Now we must remove the caprice from decisions about which entities will be subject to the Act.’131

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• Canada’s Access to Information Act, 1982:

Current definitions in Sec. 3: ‘“government institution” means (a) any department or ministry of state of the Government of Canada, or any body or office, listed in Schedule I, and (b) any parent Crown corporation, and any wholly-owned subsidiary of such a corporation, within the meaning of section 83 of the Financial Administration Act.’

In August 2005, the Liberal government amended the ATIA to add ten corporate entities to Schedule I.132

Effective April 1, 2007, the Canadian Wheat Board and five foundations were added to the ATIA’s coverage in Schedule I.133 Agents of Parliament – such as the Information Commissioner, the Privacy Commissioner and the Auditor General – were also added to the Act’s coverage, although they were granted special exemptions for certain records (such as investigatory).

As of September 1, 2007, since Crown Corporations and their wholly owned subsidiaries are now included under the new definition of ‘Government Institution’ they are no longer listed in Schedule I. On the same day, ATIA coverage of these crown corporations became effective: Canadian Broadcasting Corp., Via Rail Canada, Atomic Energy of Canada Limited, National Arts Centre, Public Sector Pension Investment Board, Export Development Canada, Canada Post.

131 Information Commissioner John Reid, A Commissioner’s Perspective – Then and Now. Toronto. Nov. 6, 2005

132 Canada Development Investment Corporation, Canadian Race Relations Foundation, Cape Breton Development Corporation, Cape Breton Growth Fund Corporation, Enterprise Cape Breton Corporation, Marine Atlantic Inc., Old Port of Montreal Corporation Inc., Parc Downsview Park Inc., Queens Quay West Land Corporation, Ridley Terminals Inc. Also that year, in February 2005, the President of the Treasury Board, Reg Alcock, tabled in the House of Commons a report on Crown corporation governance entitled Meeting the Expectations of Canadians — Review of the Framework for Canada's Crown Corporations. The report contains 31 measures designed to significantly strengthen the governance and accountability regime for Canada's Crown corporations.

133 The Asia-Pacific Foundation of Canada, Canada Foundation for Innovation, Canada Foundation for Sustainable Development Technology, Canada Millennium Scholarship Foundation, The Pierre Elliott Trudeau Foundation

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The new provisions allow the release of information about the ‘general administration’ of the agencies, which the law specifies as including travel and hospitality expenses. Critics predict the flow of information will be but a trickle: ‘It means basically you don't get anything more than what's in their annual report,’ said Mr. Reid, who called the raft of amendments protecting crown corporations the ‘dumbing down of the act.’134 One serious problem remaining is that the government creates new corporate entities each year which are not covered by the ATIA, some of which change their names frequently; even the Information Commissioner’s office one can barely keep track of them all. Hence, the list of these in Appendix 4 of this report might be incomplete at time of publication.

Global Commentary

• Article 19, Principles of Freedom of Information Legislation, 1999, endorsed by the

United Nations:

'For purposes of disclosure of information, the definition of ‘public body’ should focus on the type of service provided rather than on formal designations. To this end, it should include all branches and levels of government including local government, elected bodies, bodies which operate under a statutory mandate, nationalised industries and public corporations, non-departmental bodies or quangos (quasi non-governmental organisations), judicial bodies, and private bodies which carry out public functions (such as maintaining roads or operating rail lines).

Private bodies themselves should also be included if they hold information whose disclosure is likely to diminish the risk of harm to key public interests, such as the environment and health. Inter-governmental organisations should also be subject to freedom of information regimes based on the principles set down in this document . . .’

• Article 19, Model Freedom of Information Law, 2001:

‘6. (1) For purposes of this Act, a public body includes any body: (a) established by or under the Constitution; (b) established by statute; (c) which forms part of any level or branch of Government; (d) owned, controlled or substantially financed by funds provided by Government or the State; or (e) carrying out a statutory or public function, provided that the bodies indicated in sub-section (1)(e) are public bodies only to the extent of their statutory or public functions.

‘(2) The Minister may by order designate as a public body any body that carries out a public function. (3) For purposes of this Act, a private body includes any body, excluding

134 Public gains ability to peek inside Crown corporation files starting today, by Dean Beeby. Globe and Mail. Sept. 1, 2007. Unsurprisingly, a Canada Post office spokesman declined to tell the newspaper the cost of its ATIA unit, saying that information itself would have to be requested under the Act.

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a public body, that: – (a) carries on any trade, business or profession, but only in that capacity; or (b) has legal personality.'

• African Union, Declaration of Principles of Freedom of Expression in Africa, 2002:

'Everyone has the right to access information held by private bodies which is necessary for the exercise or protection of any right.'

• United Nations Development Agency (UNDP), Right to Information Practical

Guidance Note, 2002:

‘A ‘public body’ is defined by the type of service provided and includes all branches and levels of government including local government, elected bodies, bodies which operate under a statutory mandate, nationalized industries and public corporations, non-departmental bodies or quangos (quasi non-governmental organizations), judicial bodies, and private bodies which carry out public functions (such as maintaining roads or operating rail lines).’

• Council of Europe, Recommendations on Access to Official Documents, 2002:

‘Public authorities shall mean: i. government and administration at national, regional or local level; ii. natural or legal persons insofar as they perform public functions or exercise administrative authority and as provided for by national law. …. In some member states this notion also includes natural or legal persons performing services of public interest, or private entities financed by public funds.’

• The Carter Center, Access to Information, a Key to Democracy, 2002:

Key Principles. ‘Does the law cover records held by private bodies as well as public bodies? If not, are the records held by semi-governmental or semi-autonomous entities, like electricity boards, adequately covered by the definition of “public information”?’

• Commonwealth Parliamentary Association, Recommendations for Transparent

Governance, 2004:

‘(2.1) The obligations set out in access to information legislation should apply to all bodies that carry out public functions, regardless of their form or designation. In particular, bodies that provide public services under public contracts should, to that extent, be covered by the legislation. The Group commends the situation in South Africa, whereby even private bodies are obliged to disclose information where this is necessary for the exercise or protection of any right.'

• World Bank, Legislation on freedom of information, trends and standards, 2004:

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‘All entities that are part of the executive branch, no matter at what level, should be covered. Many freedom of information laws also include the legislative and judicial branches, subject to certain exceptions. Constitutional and statutory bodies should also be included, as well as bodies owned, substantially financed, or controlled by government.’

• Open Society Justice Initiative, Access to Information, Monitoring Tool Overview,

2004:

‘2. All bodies performing public functions should be obliged to respond to information requests. All government bodies, including the legislative and judicial branches, should be under a duty to provide information to the public, as should all bodies performing public functions. The test for whether a body performs a public function should rest on the nature of its operations and/or its receipt of public funds. Bodies such as privatized telecommunications companies or private universities would fall under this definition.’

• Transparency International, Tips for the Design of Access to Information Laws,

2006:

‘Specify which private bodies are covered: Some freedom of information laws also oblige private entities to provide information, particularly where these private bodies receive public funds and/or perform a public function and/or hold information that is necessary for the defence of other rights, such as the right to education or health or participation in public life. To ensure clarity on which bodies are bound to respond to requests for information, they should either be named within the law or the law should specify the criteria to be applied when determining when a public body has an obligation to respond and which of the information it holds must be made public.’

• Organization for Security and Co-operation in Europe (OSCE), Access to

information recommendations, 2007:

‘All participating States should adopt freedom of information legislation that gives a legal right to all persons and organizations to demand and obtain information from public bodies and those who are performing public functions.’

Other nations The public and media of most other nations would not abide the limited scope of entity coverage found in Canada’s Access to Information Act. Other statutes and practices serve as living examples to be studied for the answer to a fair and essential question: did their broader coverage of entities actually cause the myriad ‘harms’ that opponents of ATIA reform in Canada so direly warn of? The opponents could also be reminded that coverage of an entity does not mean that all of its records can then be revealed; many FOI statutory exemptions can still apply, e.g., to prevent harms to commercial interests, privacy, law enforcement.

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I am not asserting that a reformed ATIA should necessarily cover every single kind of entity noted below, but just that Canadians be aware of the FOI reality in the rest of the world. A political realist would predict that it would take decades, if ever, for Canada to fully catch up to international standards. Still, we must do far better. The following are valuable features of other transparency statutes, most of which appear in the ‘definitions’ or ‘interpretation’ sections:135 • The law explicitly covers organizations financed in part or full by government (i.e., operating costs, not business contracts per se), entities more independent than, say, crown corporations In the FOI laws of six nations (one of these Commonwealth) In the draft FOI bills of nine nations (eight of these Commonwealth) • The law explicitly covers a ‘crown corporation,’ or a ‘public services corporation’ owned in full or part by government; or a ‘statutory corporation,’ or a corporation ‘established by constitution,’ or ‘controlled by government’ (sometimes by political appointments to their boards) In the FOI laws of 19 nations (seven of these Commonwealth) In the draft FOI bills of 14 nations (ten of these Commonwealth) • The law explicitly covers legal entities performing ‘public functions’ and/or ‘vested with public powers’ In the FOI laws of 29 nations (four of these Commonwealth) In the draft FOI bills of nine nations (three of these Commonwealth) • The law explicitly covers the administrative records of courts, or other ‘judicial’ entities (as four of the Global Commentators advise, but which Canada’s ATIA definition lacks, as do most provincial FOI statutes). In the FOI laws of two nations (none of these Commonwealth) In the draft FOI bills of seven nations (three of these Commonwealth) 135 Several of the provisions cited here overlap with others, and are difficult to neatly categorize; some nations include coverage for private entities funded by the state budget and exercising public functions, whereas others use the connective or. Some of the intents are not entirely clear, even in English originals, and translations can compound ambiguities. For instance, the FOI law of Macedonia could lend itself to various interpretations: ‘1 (1) The present Law shall regulate the conditions, manner and procedure of exercising the right to free access to ’information of public character’ and ‘legal and natural persons [i.e., human beings] performing public competences and activities of public interest, determined by law.’ Yet this list could serve as a beginning for discussion purposes.

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• The law explicitly covers records of the parliament or legislature. In the FOI laws of four nations (one of these Commonwealth) In the draft FOI bills of seven nations (four of these Commonwealth) • The law explicitly covers records of a private body, if access to these records is necessary to protect ‘a human right’ In the FOI laws of two nations (one of these Commonwealth) In the draft FOI bills of three nations (all Commonwealth)

• The law explicitly covers records of a private body, if access to these records is necessary in the ‘public interest’ In the FOI laws of one nation, Ukraine In the draft FOI bills of five nations, all Commonwealth • The law explicitly covers records of a private body, if access to these records is necessary to protect ‘health and safety’

Not present in FOI laws, but in the draft FOI bills of four nations (three of these Commonwealth)

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COMMONWEALTH NATIONS

Canada has fallen far behind its Commonwealth partners on entity coverage. Even one of the most conservative FOI statutes, that of Australia (also passed in1982), includes a fuller description of entities to be covered than does the Canadian ATIA in which explicit mention of ‘a public purpose’ is absent. In the Australian Act’s interpretation:

prescribed authority means: (a) a body corporate, or an unincorporated body, established for a public purpose by, or in accordance with the provisions of, an enactment or an Order-in-Council, other than: (i) an incorporated company or association; or (ii) a body that, under subsection (2), is not to be taken to be a prescribed authority for the purposes of this Act […]

• New Zealand prescribes coverage for official information held by public bodies, state-owned enterprises, and bodies which carry out public functions. • The FOI law of India explicitly covers all public authorities set up by the constitution or statute, as well as bodies controlled or substantially financed by the government, and non-government organizations which are substantially funded by the state.

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• As might be expected, entity coverage in the FOI law of the United Kingdom is not so broad as those above, but it does include companies ‘wholly owned by the Crown,’ and a to right to access records that are held elsewhere: ‘3 (2) For the purposes of this Act, information is held by a public authority if (a) it is held by the authority, otherwise than on behalf of another person, or (b) it is held by another person on behalf of the authority.’ Canadians should note that the UK government is consulting the public this year on whether the scope of its FOI law should be extended to private bodies that are carrying out functions of a public nature, or are providing under a contract with a public authority a service which is a function of that authority. Examples of entities that could be covered include UK professional regulators (e.g., Law Society, Bar Council), and the National Air Traffic Services (the equivalent of Canada’s NAVCAN, which is not covered under our ATIA). The issue was well put in the UK consultation paper’s introduction:

The Government believes that there are good reasons for reviewing coverage of the Act: some organisations receive large amounts of taxpayers’ money to carry out functions of a public nature but are not currently subject to the Act. In fulfilling those functions it would seem appropriate that they be subject to the same scrutiny as public authorities within the scope of the Act. To include such organizations within the scope of the Act would increase transparency in the distribution and expenditure of public funds.136

• Most remarkably, the FOI law of South Africa includes a provision unique in a Commonwealth statute - and also noted in that nation’s Constitution - that allows individuals and government bodies to access records held by private bodies when the record is ‘necessary for the exercise or protection’ of people's rights. Prof. Roberts observes this fact but adds that, due to intense and well-funded opposition from the private sector, ‘We know that any attempt to introduce comparable legislation in an established democracy would be doomed to failure.’137

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136 UK Ministry of Justice, Freedom of Information Act 2000: Designation of additional public authorities. Consultation Paper CP 27 Published on 25 October 2007. The consultation paper can be downloaded from http://www.justice.gov.uk/publications/cp2707.htm The UK paper adds: ‘Some non-public authorities consider that they carry out work of a public nature and would readily accept that they should be included within the scope of the Act.’ Such a ‘ready acceptance’ from similar entities in Canada that have so long tenaciously opposed ATIA coverage would be astonishing but always welcome. 137 Roberts, op.cit.

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FOI AND PRIVATIZATION IN SCOTLAND

Scottish Information Commissioner Kevin Dunion launched a strong attack on the way privatization removes the public's right to know. In 2007 he ordered NHS Lothian to release the full contract it signed with Consort Healthcare to build and operate the new Edinburgh Royal Infirmary.

The procuring authority, NHS Lothian, had claimed that the entire contract was ‘commercially confidential.’ ‘However, other than broadly indicating why Consort Healthcare did not wish the information disclosed, NHS Lothian provided me with no arguments to justify withholding the contract,’ said Mr. Dunion. More than 5,000 pages of the contract documentation only came to light late in the investigation.

He then went further, calling for a re-think of the law to ensure that the public's right to know ‘follows the money’ when services are transferred into the private sector, although he confirms that genuine commercial confidentiality should be protected.

Mr. Dunion told the annual Freedom of Information Conference in Edinburgh: ‘When council housing is transferred to a housing association or when a charitable trust is established to run local authority leisure and recreation services, local people and employees may find that they have lost freedom of information rights at a stroke, as these bodies are not regarded as public authorities.’

‘However, in recent investigations I have found that contracts to build schools and hospitals can run to thousands of pages, and that authorities are able to withhold these on the grounds of cost or attempt to argue that the whole contract is confidential. . . . Measures can be taken to ensure that the new trusts are publicly owned and there could be a requirement to publish PPP contracts subject to safeguarding genuinely confidential elements.’

In April 2008, Member of Parliament Robert Brown prepared to introduce a member's bill to extend the public's right to know to dozens of more bodies that deliver public services, overriding many of the exemptions in Scotland’s FOI law, including private prisons and corporations. ‘It is understood the Scottish government is sympathetic to updating the FOI list,’ the press reported.

- The public must know, says FOI chief: Commissioner claims private finance is threat to legislation, by Robbie Dinwoodie. The Herald (Glasgow), October 25, 2007

- Bill extending scope of FOI Act finds sympathy from government, by Paul Hutcheon. Sunday Herald, April 20, 2008

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John Cain, former premier of the Australian state of Victoria, also wrote in favour of more partnership transparency:

If business wants to get into this [government] work, then it has to recognise that the public who pays through its taxes is entitled to know what the deal is. If we had known in 1982 when we legislated on FOI how the commercial intrusion into government functions was to evolve, then the exemption to disclosure around the concept of ‘commercial-in-confidence’' would have been very different. For some years business has demanded confidentiality in so many aspects of its dealings with government in competitive contracts or tenders. It needs to moderate these demands.138

In the Australian state of New South Wales, private businesses getting taxpayers' money to deliver public services - such as health, transport or prisons - also would be subject to FOI for the first time under suggested reforms by Ombudsman Bruce Barbour; this month he released his discussion paper offering a list of 139 potential reforms under his review of the FOI Act, its first overhaul since 1989.139

Commonwealth Draft FOI Bills

The Commonwealth nations’ newer generation of draft FOI bills is generally – and expectedly - broader on entity coverage than are the existing FOI laws. • Mozambique’s draft bill has the broadest coverage, as expressed in its draft bill, Art. 2.2 (Object): ‘Private sources shall be equivalent to official ones whenever they contain informative material of public interest.’140

138 Fresh breath for freedom, by John Cain. Herald Sun (Australia), August 14, 2008. He also called for the Victorian public service to be re-educated into dropping its secretive culture of opposing FOI requests. 139 Radical reforms to FOI law, by Kelvin Bissett. The Daily Telegraph (Australia), September 3, 2008. Valuably, under the Barbour plan, it would also be an offence for State Government ministers or their staff to place ‘undue pressure’ on FOI decision-makers to influence a determination, and FOI officers could also find themselves prosecuted where they ‘willfully fail’ to comply with the requirements of the Act. 140 Yet on Mozambique, Article 19 added: ‘The draft Law fails to define “informative material of public interest”, in relation to information held by private actors. This, too, will lead to confusion over the range of material covered. It would be better if the draft Law stated clearly that it applies to the following information: 1. any information held by or on behalf of a public body; and 2. any information held by a private body that is necessary to enforce a legal right. The first category includes any information held by a public body, regardless of its status, subject to any exceptions.’ - Note on the draft Law of Mozambique on Access to Official Sources of Information, by Article 19, London, 2005

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• In the Nigerian draft FOI bill, ‘“Public record or document" means a record in any form under the control of any public or private body relating to matters of public interest…. ’ • Bangladesh prescribes, in its draft FOI bill’s definitions, that ‘private bodies where the information is necessary for the exercise or protection of a human right’ are covered. • In contrast to the ambiguity claimed for the Canadian ATIA’s coverage of ministerial offices, the draft FOI bill of Tanzania prescribes that ‘“public authority” includes: (a) the Parliament or a committee of the Parliament (b) The Cabinet as constituted under the Constitution; (c) A Ministry or a department or division of a Ministry, or the private office of Minister, wherever located […]’ • One of the most elaborate regimes of the public’s right to access information held by private bodies can be found in the draft FOI bill of Ghana.141 If such provisions existed in Canada, for instance, hemophiliacs could likely not be denied access to information held by the government-established but ‘private’ Canadian Blood Agency. In Ghana’s bill:

Part VII – Access to Information Held by Private Bodies. Definition of private body. 47. For the purposes of this Part “private body” means (a) a natural person [i.e., a human being] who carries on any trade or any business or profession and who is registered under any enactment governing the operation of a profession, trade or the registration of a business body; (b) a partnership which carries or has carried on any trade, business or profession and is registered under the Incorporated Private Partnerships Act, 1962; (c) a body of persons registered under the Trustees (Incorporation) Act, 1962; and (d) any body corporate other than a public body.

Right of access to information held by a private body. 48. (1) A person may request access to information held by a private body. (2) A person who requests access to information held by a private body shall be given access if (a) the information is required for the (i) the exercise or protection of a fundamental human right or freedom; (ii) preservation of public safety; or (iii) protection of public interest;

141 Article 19 praised Ghana’s level of coverage but advised yet more: ‘This definition appears to reach all levels of government agency but it also appears to stop short of reaching private bodies which are substantially funded or controlled by public bodies or which carry out public functions. Such bodies may well hold information relating to key public interests, including not only to health and the environment, but also to law enforcement, maintenance of critical infrastructure and so on. A freedom of information law regime should not only include such bodies within its reach but should treat them in the same way that it treats government agencies.’ - Memorandum on the draft Right to Information Bill of the Republic of Ghana, by Article 19, London, 2003

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• Similarly, the draft FOI bill of Papua New Guinea covers ‘those records that were created or in the possession of private companies or any other persons that affect the welfare and safety of the public.’ • If passed, the impressive draft FOI bill of Kenya would contain the most complete entity coverage that one could find in any Commonwealth access law.142 All but two items listed below are missing from the Canadian ATIA entirely. In the definitions section, ‘public authority’ includes:

(a) the President and the staff of the President; (b) the National Assembly, including members of Parliament and staff of the National Assembly; (c) the Judiciary; (d) all Government ministries, departments or agencies at all levels of Government; (e) any body which - (i) is established by virtue of the President’s powers or by or under an Act of Parliament or an Order made under an Act of Parliament or which is established in any other way by a Minister of the government or by a government department or public authority; (ii) receives any part of its revenues directly from money provided by Parliament or from a levy authorized by an enactment or fee or charge of any other description so authorized; (f) any body or authority subject to examination by the Controller and Auditor General; (g) a statutory corporation; (h) a commission of inquiry (i) all local authorities established under the Local Government Act; (j) any body carrying out a statutory or public function, provided that the body is a public authority only to the extent of its statutory or public function; or

142 Article 19 regarded this Kenyan definition as almost complete: ‘The draft Law seeks to create a right of access for every person to all information held or under the control of a public authority. Both ‘information’ and ‘public authority’ are defined broadly…. In regards to the definition of ‘public authority’ we recommend inserting an extra subsection between (i) and (j) to include any body “carrying out a statutory or public function, provided the body is a public authority only to the extent of their statutory or public functions”. This provision completes this otherwise comprehensive definition…’ - Memorandum on Kenya’s Freedom of Information Bill, 2005, by Article 19, London 2006.

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(k) any other body or authority designated by the Minister as a public authority for purposes of this Act.

• The draft FOI bill of Sierra Leone helps illustrate an important distinction that can easily be misunderstood: truly ‘private’ entities need not worry that all of their records would be opened to public scrutiny, for only some might be. In the Sierra Leone bill, for instance, Clause 6 prescribes that a ‘public body’ is defined as, amongst other things, ‘(e) carrying out a statutory or public function, provided that the bodies indicated in sub-section (1)(e) are public bodies only to the extent of their statutory or public functions.’ The organization Article 19 points out that pursuant to this definition, a private security firm that guards a prison is to be regarded a ‘public body’ only to the extent of its public activity, but not when it guards private property. This means that anyone can submit an information request that is related to its public activity without having to show that the information is needed to enforce a right, as is the case in relation to information requests submitted to an ‘ordinary’ private body. The latter is defined in Clause 6 as any body that ‘(a) carries on any trade, business or profession, but only in that capacity; or (b) has legal personality.’ ‘This is a broad definition that ensures that access can be gained to information held by a corporate body or any business undertaking whenever this is necessary to enforce a right. This may be used, for example, to obtain access to information from factory concerning dangerous substances it emits into a river from which drinking water is taken.’ 143

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NON-COMMONWEALTH NATIONS

Entity coverage is generally much wider in the FOI statutes of non-Commonwealth nations, particularly Eastern European. The definitions of ‘public’ and ‘private’ bodies vary widely amongst these laws, and some terms are not entirely clear, maybe partially due to translation issues. (Argentina’s FOI law, for example, applies to ‘any agency, entity, organism or company established under the jurisdiction of the Executive Power,’ while the Armenian statute refers to ‘organizations of public importance.’) • One of the most comprehensive coverage regimes in a non-Commonwealth FOI statute can be found in the law of Estonia, which prescribes that:

143 Sierra Leone’s draft Access to Information Bill Statement of Support, by Article 19, London, 2005

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5. (1) The following are holders of information: 1. state and local government agencies; 2. legal persons in public law; 3. legal persons in private law and natural persons under the conditions provided for in subsection (2) of this section. (2) The obligations of holders of information extend to legal persons in private law and natural persons if the persons perform public duties pursuant to law, administrative legislation or contracts, including the provision of educational, health care, social or other public services, – with regard to information concerning the performance of their duties. (3) The following are deemed to be equal to holders of information: 1. undertakings which have a dominant position in the market or special or exclusive rights or which are natural monopolies – with regard to information concerning the conditions and prices of the supply of goods and services and changes thereto; 2. non-profit associations, foundations and companies of which the state, a local government or a legal person in private law is a member or the founder or in which the state, a local government or a legal person in private law is a participant, – with regard to information concerning the use of funds allocated from the state or a local government budget.

• The FOI statutes of France and Germany are amongst the least open in Europe, yet even they exceed Canada’s in coverage of entities. The French law allows access to records from ‘public institutions or from public or private-law organizations managing a public service.’ The German law prescribes:

1.1. This Act shall apply to other Federal bodies and institutions insofar as they discharge administrative tasks under public law. For the purposes of these provisions, a natural or legal person shall be treated as equivalent to an authority where an authority avails itself of such a person in discharging its duties under public law.

• Poland’s FOI law adds another dimension, that of consumer rights, for its act covers ‘legal persons, in which the State Treasury, units of local authority or economic or professional local authority hold dominant position in the understanding of the provisions of competition and consumer protection.’ • Armenia’s FOI law applies to: ‘Organizations of public importance - private organizations that have monopoly or a leading role in the goods market, as well as those providing services to public in the sphere of health, sport, education, culture, social security, transport, communication and communal services.’

• The draft FOI bill of Palestine grants powers to a commissioner to extend coverage. The law would cover ‘private institutions that manage a public facility, or perform public works, or maintain information related to the environment, health, or public safety, or any

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other institution considered by the Public Commissioner for Information as a public institution for the purposes of this law.’

• Argentina’s FOI law applies to companies that have received funds from the government.

• The FOI law of Indonesia includes an ‘overseas’ dimension: ‘Definitions: 'Public Agency means executive, legislative, judicative and other agencies whose function and main duties are related to the organizing of the state, where part or all of its funds originate from the state budget and/or the regional budget, or a non-governmental organizations that part or all of its fund originate from the state budget and/or the regional budget, the contribution from the people and/or from overseas sources.'

• Definitions in the Jordanian FOI law: ‘Department: the ministry, department, authority, entity or any public institution, public official institution or company that is in charge of the management of a public facility.’

• Overall, Ukraine’s FOI law appears the most conceptually ambitious, but most unclear: ‘Article 3. Scope. This Law shall apply to information relationships in all spheres of life and activities of society when receiving, using, disseminating, and storing information.’

THE TIDE TURNING?

Around the world, there are a few signs that the tide of opinion may be slowly turning against the unchecked spread of quasi-governmental secrecy. Even in the United States, president Bush passed amendments to the FOI Act in December 2007 to ensure that information records held by private government contractors can no longer be kept off-limits to FOIA requestors.

• In Ireland, new state bodies should be automatically required to comply with the Freedom of Information Act, Information Commissioner Emily O'Reilly said in her annual report. The Department of Finance has told her that it is willing to bring in regulations to make the Road Safety Authority and other excluded agencies under the FOI net, though she wondered why they were not covered from the start: ‘Given the number of new bodies established each year . . . I consider it urgent that this matter be addressed.’144

• In the Australian state of Queensland, private companies doing business with the government may be forced to reveal previously secret information, under changes proposed in a new report. One of its recommendations is to extend FOI laws to private

144 Automatic FOI compliance recommended, by Mark Hennessy. The Irish Times, May 2, 2008

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bodies ‘performing functions or engaging in activities which, although private in character, are also of public interest and concern’ and are taxpayer-funded.145The move followed criticism by Queensland Ombudsman David Bevan that the government made commercial-in-confidence clauses in contracts too broad, which had ‘the potential to unnecessarily restrict access to information that ought legitimately to be available to ... the public.’ The report also called for annual reporting of contracts, including those with commercial-in-confidence clauses, entered into by government entities.

Canadian commentary

• Bill C-39, introduced by NDP MP Barry Mather, Canada’s first freedom of

information bill, 1965:

Coverage: 'Every administrative or ministerial commission, power, and authority' • Bill C-225, the Right to Information Act, introduced by Conservative MP Ged

Baldwin, 1974:

‘2. In this Act, (a) “public business” includes any activity or operation carried on or performed in Canada or elsewhere by the government of Canada, by any department, branch, board, commission or agency of that government, by any court or other tribunal of Canada, or by any other body or authority performing a function of the government of Canada [….]’

• Open and Shut, report by MPs’ committee on Enhancing the Right to Know, 1987:

‘2.3. The Committee recommends that all federal government institutions be covered by the Access to Information Act and the Privacy Act, unless Parliament chooses to exclude an entity in explicit terms. Thus the Committee recommends the repeal of Schedule I to the Access to Information Act and the Schedule to the Privacy Act. The criteria for inclusion should be as follows: Firstly, if public institutions are exclusively financed out of the Consolidated Revenue Fund, they should be covered. Secondly, for agencies which are not financed exclusively in this way, but can raise funds through public borrowing, the major determinant should be the degree of government control.

‘2.7. That ‘if the Government of Canada controls a public institution by means of a power of appointment over the majority of the members of the agency’s governing body or committee, then both the Access to Information Act and the Privacy Act should apply to such an institution.’

145 Queensland: Report flags changes to freedom of information, by Paul Osborne. AAP Newsfeed, April 16, 2008

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• The Access to Information Act: A Critical Review, by Sysnovators Ltd., 1994:

‘Recommendation 87: That all federal government institutions, including Special Operating Agencies and Crown Corporations, be covered by the Access to Information Act unless Parliament chooses to exclude an entity in explicit terms. ‘Recommendation 92: That where the federal government controls a public institution by means of a power of appointment over the majority of the members of the agency's governing body or committee, then the Access to Information Act should apply to it.’ • Information Commissioner John Grace, Toward a Better Law: Ten Years and

Counting, 1994:

‘It is recommended that the law be amended to remove any doubt that ministers' offices are, in fact, included in the term "government institution" and subject to the access law […] The law should be extended to cover all federal government institutions, including: Special Operating Agencies; any institution to which the federal government appoints a majority of governing body members [….]

• A Call for Openness, report of the MPs’ Committee on Access to Information,

chaired by Liberal MP John Bryden, 2001:

‘5. We recommend that the Access to Information Act be amended to include within its scope any institution that is: established by Parliament; publicly funded; publicly controlled; or that performs a public function. . . . Records under the control of Ministers` offices should be included within the scope of the Act.’ • Information Commissioner John Reid, Blueprint for Reform, 2001:

‘The mechanism which is recommended is this: Cabinet should be placed under a mandatory obligation to add qualified institutions to Schedule I of the Act. Any person (including legal person) should have the right to complain to the Information Commissioner, with a right of subsequent review to the Federal Court, about the presence or absence of an institution on the Act’s Schedule I. As at present, the Commissioner should have authority to recommend addition to or removal from the Schedule and the Federal Court, after a de novo review, should have authority to order that an institution be added to or removed from the Schedule. ‘The Access to Information Act should deem that all contracts entered into by scheduled institutions contain a clause retaining control over all records generated pursuant to service contracts. [….] In particular, the right of access in s. 4 should explicitly state that it includes any records held in the offices of Ministers and the Prime Minister which relate to matters falling within the Ministers’ or Prime Minister’s duties as heads of the departments over which they preside.'

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• Treasury Board Secretariat, Access to Information: Making it Work for Canadians.

ATIA Review Task Force report, 2002:

‘2. Revisiting Coverage: Government Institutions. 2-1 The Task Force recommends that: [a] the Act be amended to set out criteria to be taken into account in determining what institutions should be covered under the Act; [b] the criteria provide that institutions may be covered if government appoints a majority of board members, provides all of the financing through appropriations, or owns a controlling interest; or the institution performs functions in an area of federal jurisdiction with respect to health and safety, the environment, or economic security; except where coverage would be incompatible with the organization’s structure or mandate.' 3-3. That 'the government’s Policy on Alternative Service Delivery be amended to ensure that arrangements for contracting out the delivery of government programs or services provide that: records relevant to the delivery of the program or service that are either transferred to the contractor, or created, obtained or maintained by the contractor, are considered to be under the control of the contracting institution; and the Act applies to all records considered to be under the control of the contracting institution, and the contractor must make such records available to the institution upon request.'

• Bill C-201, introduced by NDP MP Pat Martin, 2004:

C-201 adds definition of ‘officer or employee of a government institution’ to include ministers and their staff; any body of office listed in Schedule I, a Crown corporation or wholly-owned subsidiary as defined in the Financial Administration Act, and any incorporated not-for-profit organization that receives at least two-thirds of its financing through federal government appropriations [….] The enactment […](h) makes ministers of the Crown, their exempt staffs and officers of Parliament subject to the Act; (i) makes the travel and hospitality expenses of MPs and senators subject to the Act;’

• Information Commissioner John Reid, model ATIA bill, 2005 (underlined parts

are Mr. Reid’s amendments to the existing Act):

’49 (3). Subsection 77(2) of the Act is replaced by the following: (2) Subject to subsection (3), the Governor in Council shall, by order, amend Schedule I so that it includes (a) all departments and ministries of state of the Government of Canada; (b) all bodies or offices funded in whole or in part from Parliamentary appropriations; (c) all bodies or offices wholly- or majority- owned by the Government of Canada; (d) all bodies or offices listed in Schedules I, I.1, II and III of the Financial Administration Act; and (e) all bodies or offices performing functions or providing services in an area of federal jurisdiction that are essential to the public interest as it relates to health, safety or protection of the environment.

‘(3) The Governor in Council may not add to Schedule I (a) the Supreme Court of Canada, the Federal Court of Canada, the Tax Court of Canada, or any component part of these institutions; or (b) the offices of members of the Senate or the House of Commons.’

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(The original ATI Act reads: ‘Regulations 77. Additions to Schedule I (2) The Governor in Council may, by order, amend Schedule I by adding thereto any department, ministry of state, body or office of the Government of Canada.’)

• Justice Department of Canada, A Comprehensive Framework for Access to

Information Reform: A Discussion Paper, 2005:

‘Since the Act came into force, government functions have been increasingly outsourced to consultants or contractors, or assigned to alternate service delivery organizations, such as NAVCAN. This suggests that improvements should be made to the federal access to information system to ensure that more entities that perform government-like functions are accountable under the Act.’

• Justice Gomery report, Restoring Accountability, 2006:

‘It sees little reason for the large number of federal government institutions that are exempted from the provisions of the [ATI] Act. It supports an amendment to the Act that would require the Government to add virtually all remaining federal government institutions to Schedule I of the Act, which sets out the institutions that are covered. [....]

‘Since changes to Schedule I would be made by government regulation after amendments to the Act are passed by Parliament, the Commission agrees that the amendments to the Act should include the right to make a complaint to the Information Commissioner if the Government fails to add any particular government institution or institutions to the list.’

• Bill C-556, introduced by Bloc Quebecois MP Carole Lavallée, 2008:

'3. (1) Paragraph (a) of the definition “government institution” in section 3 of the Act is replaced by the following: (a) any department or ministry of state of the Government of Canada listed in Schedule I, including the office of the head of the department or ministry, or any body or office listed in Schedule I […] ’50. (2) Subsection 77(2) of the Act is replaced by the following: (2) Subject to subsection (3), the Governor in Council shall, by order, amend Schedule I so that it includes (a) all departments and ministries of state of the Government of Canada; (b) all bodies or offices funded in whole or in part from Parliamentary appropriations; (c) all bodies or offices wholly- or majority owned by the Government of Canada; (d) all bodies or offices listed in Schedules I, I.1, II and III of the Financial Administration Act; and (e) all bodies or offices performing functions or providing services in an area of federal jurisdiction that are essential to the public interest as it relates to health, safety or protection of the environment. (3) The Governor in Council may not add to Schedule I (a) the Supreme Court of Canada, the Federal Court of Canada, the Tax Court of Canada, or any component part of these institutions; or (a) the Supreme Court of Canada, the Federal Court of Canada, the Tax

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Court of Canada, or any component part of these institutions; or (b) the offices of members of the Senate or the House of Commons. 51. Schedule II to the Act is repealed. 52. The Act is amended by adding, after Schedule I, the schedules set out in the schedule to this Act.'

Canadian provinces Most provinces contain much broader definitions of what is a ‘public body’ than is found in the Access to Information Act, although they also list many of their entities by name in schedules as well. Sometimes funding is one criteria for inclusion. In New Brunswick’s FOI law, a public body means ‘any body or office, not being part of the public service, the operation of which is effected through money appropriated for the purpose and paid out of the Consolidated Fund, as set out in the regulations.’ Control over appointments can also be a factor. In Nova Scotia’s law, a public body includes ‘a Government department or a board, commission, foundation, agency, tribunal, association or other body of persons, whether incorporated or unincorporated, all the members of which or all the members of the board of management or board of directors of which (A) are appointed by order of the Governor in Council, or (B) if not so appointed, in the discharge of their duties are public officers or servants of the Crown.’ Manitoba’s law has similar provisions. Both factors are present in Quebec’s law:146 ‘Government agencies include agencies not contemplated in sections 5 to 7 to which the Government or a minister appoints the majority of the members, to which, by law, the personnel are appointed in accordance with the Public Service Act (chapter F-3.1.1), or whose capital stock forms part of the domain of the State.’ Automatic coverage of all present and future federal foundations is needed for the ATIA, and a precedent can be found in Yukon’s FOI law, where public body is defined as ‘each board, commission, foundation, corporation, or other similar agency established or incorporated as an agent of the Government of the Yukon.’ The British Columbian FOI law covers self-governing bodies of professions or occupations (listed in schedule 3), such as doctors and lawyers - a good feature, unique in a Canadian FOI statute. The United Kingdom is considering this option as well.

146 Interestingly, Quebec’s FOI law, in its definition of ‘public bodies’ covered by the act, is the only one that includes the provincial Lieutenant-Governor, a function of the British Crown.

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Compared to the ATIA, the B.C. FOI statute covers entities quite well. One day in March 2000, the B.C. government added 97 public bodies to the Act’s scope, bringing coverage to over 2,000 organizations. Notably, a non-profit corporation that was created to counsel consumers and license certain industries – the Business Practices and Consumer Protection Authority (BPCPA), which is unique in Canada – is covered. The government recently legislated that all companies owned by the Vancouver School Board must be subject to the law as well. Yet partnership contracts are a very different matter. FOI applicants have been struggling for years to obtain the B.C. government’s non-redacted contracts with Maximus Ltd., a Virginia-based company that received $324 million to manage the province’s health records; EDS, the government’s controversial Texas-based debt collector; and many others.

In spring 2006, the B.C. government tried to pass section 9 of Bill 30 - which stated that agencies must (not may) refuse to release information, for 50 years, that is ‘jointly developed for the purposes of the project,’ amongst other new disclosure restrictions.147 Vocal protests compelled it to drop the plan, as they scuttled a similar bill in 2008 regarding companies’ work on the climate change issue.148

Worst of all, when quasi-governmental entities do business amongst themselves, the opacity can be absolute. In March 2008, the Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games (VANOC) contracted the Vancouver International Airport authority (YVR) to be an official supplier. Both of these entities are not covered by FOI laws, provincial or federal, and so their contract can be secreted.

Regrettably, when a crown corporation is technically ‘privatized’ completely - even when it is still owned by government and reports to it - FOI rights can be lost; examples include the B.C. Ferry Corporation and Ontario Hydro, although Hydro was returned to the FOI fold at the choice of a new administration. Ontario Information and Privacy Commis-sioner Ann Cavoukian has been calling on the provincial government to bring all organizations primarily funded by the province under the FOI law. In 2004, the B.C. Information and Privacy Commissioner, David Loukidelis, raised the serious concern that ‘outsourcing’ initiatives by the B.C. government were eroding the B.C. FOI law. He recommended that the law be amended to clarify that records created

147 The origins of this proposal are evident. In 2004 the British Columbia bureaucracy complained to a provincial legislative FOI law review committee that the B.C. Information Commissioner's rulings which had opened up public-private business contracts ‘undermined fair and open procurement processes that will result in the best deal for the province.’ The Commissioner’s aide countered, ‘This serious allegation is a calculated appeal to politics, and we note that no particulars or evidence have been provided to support this sweeping claim.’ Very similar debates are heard at the federal level. http://thetyee.ca/Mediacheck/2007/05/08/FOI/ 148 http://thetyee.ca/Views/2006/05/09/LibsPoisedSlamLidSecrecy/

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by or in the custody of any service-provider under contract to a public body remain under the control of the public body for which the contractor was providing services. The Special Committee of the B.C. Legislature reviewing the FOI act unanimously agreed.149 The same principle could be applied to the federal ATI Act.

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149 Murray Rankin, The Access to Information Act 25 Years Later: Toward a New Generation of Access Rights in Canada. A report for the federal Information Commissioner’s office, Ottawa, June 2008

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Chapter 5 ~ The Raison D’Etre

The Public Interest Override

Is there a public interest override for all or some exemptions in the FOI law?

‘A Conservative government will: Provide a general public interest override for all exemptions, so that the public interest is put before the secrecy of the government.’

- Conservative Party of Canada, election platform, 2006

(Promise not fulfilled.)

‘In our experience, a public interest override is crucial to the effective functioning of a freedom of information regime. It is simply not possible to envisage in advance all of the circumstances in which information should still be disclosed, even if this might harm a legitimate interest, and to

address these through narrowly drafted exceptions or exceptions to exceptions.’

- Memorandum on the Law Commission of the Republic of Bangladesh Working Paper on the Proposed Right to Information Act 2002, by Article 19, 2004

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The most important and elusive concept in the theory of government transparency, and in fact the raison d’etre of most freedom of information statutes, is based on this question: What, exactly, does ‘the public interest’ mean in the law?

Should a ‘public interest override’ apply to all FOI statutory exemptions, or just to some of these? Should it override other exemptions absolutely, or should other needs be weighed and balanced against it? Should the override require agencies to release information, or just permit it? Should the state have a duty to proactively publish such information, or only in response to an access request for it? Should it apply to only the most grievous potential harms – such as life and death issues - or to less urgent ones as well? Who should be permitted to decide what can be a very political question – a commissioner, a judge, or others?

In sum, though, the concept suggests that the needs or rights of the whole at times override those of the one or few, that is, the community may prevail over individuals or certain groups. For instance, police sometimes publish the name and address of a potentially dangerous predator who moves into a neighbourhood, overriding his or her privacy rights; a government might reveal the exact composition of chemicals that a company has spilled into a river, overriding its trade secret rights.150

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‘The overriding public interest’ is an idea with which courts, legislators and commentators around the world have struggled for decades without agreeing upon one conclusive definition, if indeed one exists. Yet however the public interest is defined is a fair measure of the values and political culture of a nation at the time.

• Canada’s Access to Information Act, 1982:

There are only two public interest override features in the Canadian Access to Information Act, both discretionary. The first is within the mandatory Sec. 20, on third party information.

20 (6) The head of a government institution may disclose all or part of a record requested under this Act that contains information described in any of paragraphs (1)(b) to (d) if (a) the disclosure would be in the public interest as it relates to public health, public safety or protection of the environment; and (b) the public interest in disclosure clearly outweighs in importance any financial loss or gain to a third party, any prejudice to the security of its structures, networks or systems, any prejudice to its competitive position or any interference with its contractual or other negotiations.

Those paragraphs (b)(c) and (d) refer to financial, commercial, scientific or technical information supplied in confidence; disclosure that could cause financial or competitive loss, or interfere with negotiations.

But the override cannot apply to 20 (1)(a), ‘trade secrets of a third party.’ Ideally it would in a reformed ATIA, for cases could clearly arise where the public interests of health or safety should surpass trade secret protection.

The second public interest override is found within the ATIA’s mandatory Sec. 19, on personal information. In Sec. 19 (2)(c) it refers to a section of the Privacy Act to permit disclosure in some cases.

[Privacy Act] 8. (1) Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by the institution except in accordance with this section.

150 On matters of official wrongdoing, ‘although release of such information usually causes harm to the privacy of the person whose corruption it exposes, the wider public interest in exposing corruption outweighs this harm.’ - Memorandum on a draft Law on Access to Information for Palestine, by Article 19, London, 2005. This point is most relevant with the Quebec advertising sponsorship scandal.

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(2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed [….] (m) for any purpose where, in the opinion of the head of the institution, (i) the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure, or (ii) disclosure would clearly benefit the individual to whom the information relates.

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Global Commentary

Many international organizations urge the adoption of a much broader ‘public interest override’ section, as an international standard, than the one that now stands in Canada’s Access to Information Act - that is, the override should apply to all the FOI exemptions151 and be mandatory, not just apply to two exemptions and be discretionary, as in Canada.

• The Right to Know Bill, drafted by the Campaign for Freedom of Information

(Great Britain), and introduced by British MP Mark Fisher, 1993:

‘Even exempt information may be disclosed in the public interest if there is reasonable evidence of significant (a) abuse of authority or official negligence (b) injustice to an individual; (c) danger to health or safety (d) unauthorised use of public funds…. Disclosure would not automatically follow, particularly if the abuse was minor and the potential damage from disclosure significant.’

• The Johannesburg Declaration of Principles, adopted in 1995 by a meeting of

experts in international law, national security, and human rights:

‘Principle 13: ‘In all laws and decisions concerning the right to obtain information, the public interest in knowing the information shall be a primary consideration.’

• Article 19, Model Freedom of Information Law, 2001:

‘Notwithstanding any provision in this Part, a body may not refuse to indicate whether or not it holds a record, or refuse to communicate information, unless the harm to the protected interest outweighs the public interest in disclosure.’

151 Regarding public interest overrides (which may be required or simply permitted), there is an important distinction on how they apply to mandatory versus discretionary exemptions: ‘An override that affects a discretionary exemption will, invariably, require disclosure of the exempted information. Simply to permit disclosure would add nothing top the inherent authority to grant or refuse access that a government institution will already have under a discretionary exemption.’ – Colin McNairn and Christopher Woodbury, Government Information: Access and Privacy. Toronto: Carswell, 2007

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(Elsewhere, Article 19 asserts that the bar should not be set high to apply the override: ‘Disclosure should not need to be vital in the public interest; rather, the public interest in disclosure should just outweigh the interest in secrecy.’152)

• Commonwealth Secretariat, Model Freedom of Information Bill, 2002:

‘Notwithstanding any law to the contrary, a public authority shall give access to an exempt document where, in all the circumstances of the case, to do so is in the public interest, having regard both to any benefit and to any damage that may arise from doing so in matters such as, but not limited to - (a) abuse of authority or neglect in the performance of official duty; (b) injustice to an individual; (c) danger to the health or safety of an individual or of the public; or (d) unauthorised use of public funds [….]’ (Elsewhere, the CHRI advised that an FOI public interest override be applied to both public and private bodies.153)

• Council of Europe, Recommendations on Access to Official Documents, 2002:

‘Access to a document may be refused if the disclosure of the information contained in the official document would or would be likely to harm any of the interests mentioned in paragraph 1 [list of exemptions], unless there is an overriding public interest in disclosure.’

• The Carter Center, Access to Information, a Key to Democracy, 2002:

‘There should be a general public interest override covering the exemptions. Most laws around the world link a harm test to the notion of public interest, so as to trump the exemption when appropriate. This is critical to drafting a bill that accords with good international practice.’

• National Security Archive, George Washington University, The World’s Right to

Know, 2002:

‘Even where there is identifiable harm, the harm must outweigh the public interests served by releasing the information.’

• World Bank, Legislation on freedom of information, trends and standards, 2004:

‘Even if disclosure would pose a risk of harm to a legitimate aim, the information should still be disclosed if the benefits of disclosure outweigh this risk. Known as the public

152 Comments on Draft Sri Lankan FOI Law, by Article 19, London, 2003

153 St. Kitts and Nevis Freedom of Information Bill 2006, analysis by Cecelia Burgman, CHRI (2007)

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interest override, this might be applicable where personal information disclosed evidence of corruption or other wrongdoing.’

• Open Society Justice Initiative, Ten Principles on the Right to Know, 2006:

‘Principle 7. Information must be released when the public interest outweighs any harm in releasing it. There is a strong presumption that information about threats to the environment, health, or human rights, and information revealing corruption, should be released, given the high public interest in such information.’

• United Nations Development Agency (UNDP), Key questions, UN Special

Rapporteur on Freedom of Information, 2006:

‘Exceptions to the right of access should be set out clearly in these policies and access should be granted unless (a) disclosure would cause serious harm to a protected interest and (b) this harm outweighs the public interest in accessing the information.'

• Organization for Security and Co-operation in Europe (OSCE), Access to

information, trends and recommendations, 2007:

‘The public interest in disclosure should be considered in each case.’

Other nations

Of the 68 jurisdictions with freedom of information statutes, I counted 38 with some form of public interest override: Argentina, Kosovo, Macedonia, Mexico, Moldova, Montenegro, New Zealand, Philippines, Poland, Romania, Scotland, Serbia, Slovakia, Slovenia, South Africa, St, Vincent and the Grenadines, Thailand, Trinidad and Tobago, Uganda, Ireland, United Kingdom, Wales, Zimbabwe, India, Israel, Italy, Jamaica, South Korea, Armenia, Australia, Bosnia and Herzegovina, Bulgaria, Denmark, Estonia, and Georgia. China and Shanghai municipality also have limited and discretionary overrides.

A form of public interest override appears in 20 of 29 draft FOI bills:154 Bangladesh, Brazil, Chile, Cayman Islands, Costa Rica, Fiji, Ghana, Guyana, Indonesia, Kenya, Lesotho, Malaysia, Malawi, Maldives, Nigeria, Papua New Guinea, Sierra Leone, St. Kitts and Nevis, Tanzania, Vanuatu.

Some overrides trump all exemptions, some only a few; some overrides are mandatory, some discretionary; in a few cases the phrase ‘public interest’ does not appear but the

154 The exact number of public interest overrides is not perfectly clear, due to translation issues, and by the fact that some clauses resemble such overrides by description, but they are not explicitly named as such. An example might be Sec. 14 of Mexico’s FOI law which states: ‘Information may not be classified when the investigation of grave violations of fundamental rights or crimes against humanity is at stake.’

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same intent is clear. Yet in nearly all cases - even in Commonwealth nations - the override is far broader than those found in Canada’s ATIA.

Positive Features

• In six of the FOI laws the public interest override is proactive (that is, the government must release the information, even if no FOI request for it has been received), in 23 laws, overrides are triggered by FOI requests; while in 15 draft FOI bills all the overrides are request driven.

• In 21 FOI laws – and 15 draft FOI bills - the public interest override is mandatory (i.e., release must trump exemptions); while in eight laws it is discretionary (i.e., permitted).

• In 20 of the FOI laws – and 11 draft FOI bills - the override is general, overriding all exemptions; while in nine laws – and four draft bills - the overrides cover only certain exemptions. (Several statutes also include overrides within specific exemptions as well as the general override, perhaps redundantly. An override can list certain key topics, yet also apply generally, with the phrase of “including but not limited’ to those topics.)

• The ‘public interest’ is mentioned but undefined in the overrides of 17 national FOI laws, and in eight draft FOI bills.

• There are overrides in 14 FOI laws – and in six draft FOI bills – that refer to public health and safety

• There are overrides in 11 FOI laws – and in three draft FOI bills – that refer to environmental protection

• There are other criteria (ranging from ‘misuse of authority’ to ‘social development’) cited in the overrides of nine FOI laws, and five draft FOI bills.

• Regrettably, seven existing FOI laws have a sort of reverse public interest override, that is, the public interest can or must be considered as grounds to withhold information instead of releasing it. This feature is thankfully absent from the draft FOI bills, not unexpectedly in the newer generation of transparency laws.

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One of the best examples can be found in the draft FOI law of Kenya (again), and a reformed Canadian ATIA would do well to consider it:

5(4) Notwithstanding anything in sub-section (1), a public authority shall disclose information where the public interest in disclosure outweighs the harm to protected interests.

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(5) For the purposes of sub-section (4), in considering the public and democratic interest, particular regard shall be had to the need to

(a) promote accountability of public authorities to the public;

(b) ensure that the expenditure of public funds is subject to effective oversight;

(c) promote informed public debate;

(d) keep the public adequately informed about the existence of any danger to public health or safety or to the environment; and

(e) ensure that any statutory authority with regulatory responsibilities is adequately discharging its functions.

Other FOI statutes have public interest overrides well worth contemplating for a reformed Canadian Access to Information Act:

• Several statutes have overrides that go far beyond health, safety and the environment, to consider problems in governmental management. In Montenegro’s FOI law, for instance, ‘Information cannot be withheld if it relates to ignoring regulations, unauthorized use of public resources, misuse of power, criminal offenses and other related maladministration issues.’

• In Belize’s FOI law, Article 9(2), public bodies must consider a public interest release for information on ‘any failure to comply with a legal obligation, the existence of any offence, miscarriage of justice, abuse of authority or neglect in the performance of an official duty.’

• In the FOI law of Armenia, the override extends to social and economic concerns:

Article 8.3. Information request cannot be declined, if: (a) it concerns urgent cases threatening public security and health, as well as natural disasters (including officially forecasted ones) and their aftermaths; (b) it presents the overall economic situation of the Republic of Armenia, as well as the real situation in the spheres of nature and environment protection, health, education, agriculture, trade and culture; (c) if the decline of the information request will have a negative influence on the implementation of state programs of the Republic of Armenia directed to socio-economic, scientific, spiritual and cultural development.

• Romania guarantees the right in its Constitution, Article 31: ‘A person's right of access to any information of public interest cannot be restricted.’

• In Guyana’s draft FOI bill, Sec. 35(b) prescribes the disclosure of information regarding ‘injustice to an individual’

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• In several FOI statutes, proactive broadcasting is mandated. In Estonia’s law, Sec. 30 (4), ‘State and local government agencies are required to communicate information concerning events and facts and which is in their possession to the broadcast media and the printed press for disclosure if public interest can be anticipated.’

• Interestingly, like the ATIA, the public interest override of China’s FOI ordinance is discretionary and limited to the two general topics cited in Canada’s ATIA overrides:

Article 14: […] State organs cannot release government information touching on national secrets, commercial secrets and personal privacy. However, in cases where the consent of the rightful party is obtained, or the administrative organ determines that not releasing certain government information touching on commercial secrecy or personal privacy could do serious harm to the public interest, release may be made.

• The overrides of several FOI acts cover the corporate sector. In South Korea’s law, Sec. 7(1)(b), there is an override on trade secrets for ‘Information which must be disclosed for the protection of the property or everyday routines of individuals from unlawful or improper business operations.’

• In the FOI law of Trinidad and Tobago, Sec. 31(2)(d), a public body may consider:

(d) whether there are any considerations in the public interest in favour of disclosure which outweigh considerations of competitive disadvantage to the undertaking, for instance, the public interest in evaluating aspects of regulation by a public authority of corporate practices or environmental controls.

• Slovakia’s override for environmental protection, regarding trade secrets, is the most detailed:

10 Protection of trade secret. (1) The Obligee shall not disclose any information classified as a trade secret. (2) Disclosure of the following information shall not be deemed as a violation or jeopardizing a trade secret: a) information related to a significant impact on health of the population, world cultural and natural heritage, environment, including biological diversity and ecological stability, b) information on environmental pollution, c) information obtained through public funds or relating to the use of public funds or state or municipal property, d) information on state assistance and information under §3, Section 2.

• There is also a public interest in the policy making process. In Scotland’s FOI law, Sec. 29 (3), ‘the Scottish Administration must have regard to the public interest in the disclosure of factual information which has been used, or is intended to be used, to provide an informed background to the taking of a decision.’

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• In the United Kingdom’s FOI law, public interest overrides applies to all ‘non-absolute’ exemptions. (In the UK’s distinct terminology, ‘absolute’ does not correspond to ‘mandatory’; it simply means that if the exemption applies, then no additional test of public interest follows.) The normal public interest test in Sec. 2 of the UK Act requires the authority to disclose exempt information unless the public interest in maintaining the exemption outweighs the public interest in disclosure.

• The draft FOI bill of Sierra Leone states in Sec. 21(1) that the government may not refuse to provide access to information that would (amongst other topics) ‘contribute to improved public participation in, and understanding of, public policy-making,’ and also ‘prevent or expose a miscarriage of justice.’

• Article 19 observes that the Nigerian draft FOI bill ‘also provides for general public interest disclosure, but apparently only by courts of law. This may be somewhat confusing for public authorities as they appear not to be under an obligation to disclose in the public interest but may be ordered to do so on that basis by courts.’155

On this last point, if the Canadian parliament refuses to accept the concept of allowing government officials or commissioners to apply a more general ATIA public interest override, a political realist might accept that empowering the courts to apply the override might be a viable first step, better than nothing at all.

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Canadian commentary

• Open and Shut, report by MPs’ committee on Enhancing the Right to Know, 1987:

‘3.10. The Committee recommends that section 19(2) [personal information] of the Access to Information Act be amended to provide as follows: “Notwithstanding subsection (1) the head of a government institution shall disclose....”’ [It is currently ‘may’ disclose. i.e., Change the public interest override from discretionary to mandatory.]

‘3.16. That 'the public interest override contained in section 20(6) of the Access to Information Act extend to all types of third-party information set out in section 20.'

‘6.16. That ‘the Access to Information Act be amended to add a provision requiring a government institution to reveal information as soon as practicable where there are reasonable and probable grounds to believe that it is in the public interest to do so and that the record reveals a grave environmental, health or safety hazard.’

155 Memorandum on the Nigerian Freedom of Information Bill, by Article 19, London, 2000

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• Information Commissioner John Grace, Toward a Better Law: Ten Years and

Counting, 1994:

‘The absence in the federal Act of a general public interest override is a serious omission which should be corrected. Again, with the exception of the personal privacy exemption, the Act should require government to disclose, with or without a request, any information in which the public interest in disclosure outweighs any of the interests protected by the exemptions.’

• The Access to Information Act: A Critical Review, by Sysnovators Ltd., 1994:

‘Recommendation 28: Provide a principle statement that indicates that the public interest is paramount where records reveal a grave environmental, health or safety hazard to the public on the model of the Ontario legislation.

‘Recommendation 29: Again following the Ontario model, provide a specific public interest override for section 2, section 13, section 14, section 17, section 18, section 22, section 23, and section 24. The public interest should be in protection of public health, public safety, the environment, law enforcement, the administration of justice and national defence and security.

‘Recommendation 31: Extend the public interest override in subsection 20(6) of the Act to cover paragraph 20(1)(a), trade secrets.

‘Recommendation 32: Add a general provision at the beginning of the exemptions part of the Act which obliges heads of institutions to use their discretion in favour of access and openness as opposed to refusal.’

• Open Government Canada (OGC), From Secrecy to Openness, 2001:

‘Recommendation 11: A proof-of-harm test and public interest override (as in B.C. and Alberta) should limit the discretion, under all exemptions, to withhold a record.’

• Treasury Board Secretariat, Access to Information: Making it Work for Canadians.

ATIA Review Task Force report, 2002:

‘4-1. The Task Force recommends that guidelines be issued on how to apply discretionary exemptions by: exercising discretion as far as possible to facilitate and promote the disclosure of information; weighing carefully the public interest in disclosure against the interest in withholding information, including consideration of any probable harm from disclosure, and the fact that information generally becomes less sensitive over time; and having good, cogent reasons for withholding information when claiming a discretionary exemption.’

‘Section 20 - Third Party Information. 4-21. The Task Force recommends that Section 20(6) be amended to add consumer protection as a public interest element for the head of

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a government institution to weigh in deciding whether to disclose information subject to this provision.’

• Bill C-201, introduced by NDP MP Pat Martin, 2004:

‘s. 13. The head of a government institution may disclose any record requested under this Act, or any part thereof, that contains information described in subsection (1) if that disclosure would be in the public interest as it relates to public health, public safety, protection of the environment or the governance of corporations and, if the public interest in disclosure clearly outweighs in importance any financial loss, prejudice to the competitive position of or any other injury referred to in this section to the Government of Canada or to a government institution or its officers or employees.’

• John Reid, former Information Commissioner of Canada, model ATIA bill, 2005:

‘(2) Section 2 of the Act is amended by adding the following after subsection (2): 2.3 Notwithstanding any other provision of this Act, the head of a government institution shall disclose a record or part thereof requested under this Act, if the public interest in disclosure clearly outweighs in importance the need for secrecy.’

• Canadian Newspaper Association, In Pursuit of Meaningful Access to Information

Reform, 2005:

‘Recommendation C. Public interest must outweigh government secrecy, especially in cases of risk of significant harm to public health or safety, a grave environmental threat, or health or safety risks to an individual or group. 9. The public interest override in the current Act must be strengthened, in line with freedom of information laws in British Columbia, Alberta, and Ontario. Exemptions for cabinet confidences should also be subject to this provision.’

• Justice Gomery report, Restoring Accountability, 2006:

‘The [Canadian ATI] Act should state explicitly that records must be disclosed whenever the public interest in disclosure clearly outweighs the need for secrecy.’

• Bill C-556, introduced by Bloc Quebecois MP Carole Lavallée, 2008:

'2.3 Notwithstanding any other provision of this Act, the head of a government institution shall disclose a record or part of a record requested under this Act, if the public interest in disclosure clearly outweighs in importance the need for secrecy.

[…] 17. (3) Subsection 20(6) of the Act is repealed.’

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Canadian provinces

All Canadian provinces and territories (except New Brunswick) have public interest overrides in their FOI statutes, and the strongest one is found in British Columbia’s act, Sec. 25, one that was virtually reproduced in the laws of Alberta and Prince Edward Island. This could well serve as a model for the ATIA. Unlike the federal statue, the override in B.C. is general, mandatory, and remarkably broad in the sense it could be applied for any other reason - beyond those described here - if the public body or Commissioner sees a need to do so:

Sec. 25. (1) Whether or not a request for access is made, the head of a public body must, without delay, disclose to the public, to an affected group of people or to an applicant, information (a) about a risk of significant harm to the environment or to the health or safety of the public or a group of people, or (b) the disclosure of which is, for any other reason, clearly in the public interest. (2) Subsection (1) applies despite any other provision of this Act.

In six provinces and territories, the FOI public interest override is mandatory: Newfoundland and Labrador, the Yukon, Ontario, B.C., Alberta, Prince Edward Island. In all of those six statutes, the override is also general, not limited to certain exemptions. It is also general in Nova Scotia, but discretionary there. In the other statutes, the override is regrettably limited to certain exemptions.

In seven provincial laws with a override, the provision is proactive, i.e., the government must release the information if an FOI request has been made for it or not. Nearly all phrase it in terms similar to ‘a risk of significant harm to the environment or to the health or safety of the public.’

There are several other points of interest. In Ontario, the Yukon and the Northwest Territories, privacy exemptions can be overridden for the purpose of subjecting the activities of the government to ‘public scrutiny.’

In Manitoba’s law, Sec. 18(4), business confidentiality can be overridden if it is outweighed for the public purpose of ‘(b) improved competition; or (c) government regulation of undesirable trade practices.’

In the Northwest Territories’ statute, the government must provide records in the applicant’s preferred language if, in Sec. 7(3)(b), ‘the head of the public body considers it to be in the public interest to have a translation of the record prepared in that language.’

Incidentally, it is also positive that several federal and provincial statutes aside from FOI laws – such as the federal Fisheries Act and the Canadian Environmental Protection Act - mandate pro-active publication on public interest matters such as environmental protection health and safety.

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LANDMARK ONTARIO CASE ON ‘PUBLIC INTEREST OVERRIDE’

In May 2007 the Ontario Court of Appeal created a major precedent for freedom of information, ruling that government officials could not suppress information about a notorious Ontario murder case without first considering the public interest in its release. Ignoring the virtues of open, informed debate seriously damages the reputation of the justice system ‘and places us back to an era where government secrecy was the norm, and disclosure was at the whim of the minister,’ a 2-1 majority wrote. The ruling would likely force the province to release an internal Ontario Provincial Police report into the botched prosecution of two men who were acquitted in the execution-style murder of gangster Domenic Racco in 1983. The OPP had invoked the provincial FOI act exemptions of law enforcement and solicitor-client privilege. Lawyer Frank Addario, a spokesman for the group that won the case - the Criminal Lawyers Association (with help from the Canadian Newspaper Association) – said, ‘This is the first time that a secrecy provision in FOI legislation has been successfully attacked in North America.’ The two judges ruling for the majority said that public debate involving a notorious criminal case is a form of ‘expressive activity’ that must clearly be given protection under the Charter of Rights and Freedoms. They rejected government arguments that opening up a so-called ‘public interest override’ provision will lead to a costly and disruptive flood of litigation from individuals and media organizations. However, in a toughly written dissent, the third judge said it was altogether too presumptuous for judges to read constitutional guarantees into legislation where parliamentarians specifically refused to do so. - Ontario secrecy provision nixed; Ruling by Court of Appeal may lead to release of documents from the Racco murder case, by Kirk Makin. The Globe and Mail, May 26, 2007. Case: CanLII - 2007 ONCA 392 (CanLII)

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Chapter 6 ~ Blackouts and Whiteouts

Harms Tests and Time Limits

Are all or some of the exemptions in the FOI law subject to a harms test,

and time limits?

‘A Conservative government will: Ensure that all exemptions from the disclosure of government information are justified only on the basis of the harm or injury that would result from disclosure,

not blanket exemption rules.’

- Conservative Party of Canada, election promise, 2006

(Promise not fulfilled.)

___________ The basic purpose of including exemptions to disclosure in a freedom of information statute is to avert some sort of harm or injury. Therefore it is illogical and indefensible to simply exempt entire record types from the statute’s coverage, because if harm could have been caused by the release of such records, they could have been withheld under the law’s exemptions anyway.

Access should be denied only when disclosure would pose a serious risk of harm or injury to a legitimate aim, with the harms explicitly described. Unfortunately, many FOI laws include exemptions that are not subject to harm tests, which are often referred to as ‘class exemptions.’

Sometimes this occurred because parliamentarians who passed the law did not consider the harms test issue thoroughly enough, or perhaps regarded the supposed harms occurring from the release from certain record types as being too self-evident to bother describing. Some who drafted the laws may also have lacked faith in the ability of FOI officials and appellate bodies, as too ‘generalist’ or ‘non-specialist’ to judge the potential for harms in a certain field of activity accurately enough (such as for national security), and they so wished to create an extra wall of protection around these record types.

The lack of a harms test for all exemptions is, unfortunately, a serious failing of Canada’s Access to Information Act, despite the Conservative party’s pledge (cited above) to resolve the problem.

As the human rights organization Article 19 has rightly noted, FOI statute exemptions should be narrowly drawn, should be based on the content rather than the type of record, and should be time-limited. Furthermore, a refusal to disclose information is not justified unless the public authority can show that the information meets a strict three-part test: First, the information must relate to a legitimate aim listed in the law. Second, disclosure

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must threaten to cause substantial harm to that aim. Third, the harm to the aim must be greater than the public interest in having the information.156

An FOI statute should define potential harms with as much clarity and precision as possible, although appellate bodies would help shape a definition in their rulings. As we shall see, the FOI laws of some nations mandate that the potential harms be ‘serious’ or ‘grave,’ (as distinct from minor or remote). In a statute, of course, every word counts and such stricter definitions are needed in a reformed ATIA. There would ideally be at least a ‘reasonable’ possibility of harm, based on a balance of probabilities, and real evidence for injury produced by public bodies and third parties, not mere assertions or speculations.

Some of the exemptions in the ATIA are clearly overbroad and, as the group Article 19 has observed, ‘A strong harm requirement undoes much of the damage potentially caused by overbroad exceptions. This is because, where an exception is cast in excessively broad terms, much of the information in the zone of overbreadth would not, if disclosed, cause any harm to a legitimate interest.’157 An important related concept, which merits a chapter itself, is that of time limits for ATIA exemptions; this is itself a sort of harms test, because the potential for harm generally diminishes with the passage of time. This is true even for older defense and intelligence records - as witness their recent massive declassification in the United States158 and elsewhere, which can provide startling reassessments of history. Yet in the ATIA, some types of records can be sealed forever. For example, the United Kingdom’s statutory FOI exemption for certain law enforcement records is 100 years, which would permit a current historian to read records of offenses committed prior to 1908. Is even such a limit as this not preferable to eternity? There should be at least some time limit mandated for each exemption in the Act, limits to be determined by parliamentarians in ATIA amendments.

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156 Toby Mendel, head of the Law Programme of Article 19, The Public’s Right to Know: Principles of Freedom of Information Legislation. London, June 1999 157 Memorandum on the Ugandan draft Access to Information Bill, 2004, by Article 19, London, 2004. http://www.article19.org/pdfs/analysis/uganda-bill-no.-7.pdf 158 It is also very notable that all the nine categories of exemptions in the United States’ FOIA are discretionary.

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• Canada’s Access to Information Act, 1982:

Unfortunately, in the ATIA there are class exemptions which allow records to be withheld regardless of whether disclosure could cause harm. None of these records, therefore can be released, even if they are innocuous, old, of public interest or benefit, and no harm would result from release. This situation in the ATIA generally falls short of current international FOI standards. Of the ATIA’s twelve exemptions, Sec. 14159, and 15, and 16(1)(c) and (d), and 16(2), and 17, and 18 (b)(c)(d), and 22 (all discretionary), permit government to withhold information where disclosure could be ‘injurious,’ or cause 'prejudice,' or 'facilitate' an offense, or cause other harms. Yet the seven ATIA sections below are class exemptions and lack explicitly-stated harms tests. The first four examples are mandatory, the last three are discretionary. Only Sec. 19 has a public interest override. - Sec. 13, information obtained from other governments (municipal, provincial, international) in confidence - Sec. 16 (3), information obtained by the RCMP in the course of carrying out policing functions in a province - Sec. 19, personal information (which is protected under the Privacy Act) - Sec. 24, the disclosure of information prohibited by other statutes (See Chapter 11) - Sec. 21, policy advice and recommendations (See Chapter 7) - Sec. 22.1(1), draft audits - Sec. 23, solicitor-client privilege (Confidentiality on this topic also has a long tradition in common law, of course.) One AITA guidebook notes: ‘This first exemption [Sec. 13] sets the tone for all the rest. Its meaning is unclear, and the power it gives can be abused.’160 There are several other sub-sections where one could wonder if harms might have been assumed or implicit, though the Act does not state it explicitly, perhaps due to drafting neglect as much as to intent. Consider, for example, ‘Sec. 16. (1) The head of a government institution may refuse to disclose any record requested under this Act that contains […] (b) information relating to investigative techniques or plans for specific

159 Incidentally, ATIA Sec. 14, for federal-provincial affairs (a discretionary exemption, with a harms test), should be deleted, if it is not heavily revised. First, it is far too broad, and the government has ignored repeated calls to have its term ‘affairs’ narrowed to ‘negotiations.’ Secondly, say several lawyers, ‘section 14 seems hardly necessary. Other exemptions [e.g., 21, 13, 69] cover all the concerns.’ – Heather Mitchell and Murray Rankin, Using the Access to Information Act. Vancouver: International Self-Counsel Press, Ltd., 1984 160 Mitchell and Rankin, ibid.

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lawful investigations.’ The same concept might be relevant to Sec. 16(1)(a), 18(a), and 20 (1)(a) and (b). Beyond such exemptions, there are two ‘exclusions’ in the Act, where records do not fall under the ATIA’s scope at all, and so where the concept of a harms test for possible release cannot even arise. These are Sec. 68 (certain archival and already published material) and Sec. 69 (cabinet records, the topic of Chapter 8). In a reformed ATIA, these exclusions need to be transformed into exemptions. Worst of all, in 2006 the government amended the Act to withhold draft internal audits, in Sec. 22.1(1), with no explicit harms test being added. What follows is possibly the most misguided amendment to the ATIA yet passed:

Internal audits 22.1 (1) The head of a government institution may refuse to disclose any record requested under this Act that contains a draft report of an internal audit of a government institution or any related audit working paper if the record came into existence less than fifteen years before the request was made. Exception (2) However, the head of a government institution shall not refuse under subsection (1) to disclose a draft report of an internal audit of a government institution if a final report of the audit has been published or if a final report of the audit is not delivered to the institution within two years after the day on which the audit was first commenced. 2006, c. 9, s. 150161

If a nation in the developing world - with a special burden, one not borne by Canada, to demonstrate to the world it has reduced corruption - had amended its FOI law in this way to withhold draft audits, then foreign aid agencies might have cited this as one rationale to reconsider granting economic aid to it.162

ATIA Sec. 19, personal information, should also be considered closely. It is mandatory, with the exemption inactive if the person in question has been deceased for more than 20 years (per Sec. 3 of the Privacy Act ), and it has a public interest override. As some regard privacy as perhaps the most complex and sensitive FOI exemption, the most fraught with real or perceived human risks, it requires citation in full: 161 The 2002 Treasury Board Task Force, however, had taken a narrower view, recommending that ATIA Sec. 22 be amended to allow the agency to refuse to disclose draft internal audit reports until the earliest of: the date the report is completed; six months after work on the audit has ceased; or two years following commencement of the internal audit. 162 The Comptroller General strongly argued that release of draft internal audits, even after the audit has been completed and the final report has been issued, could therefore harm individuals or programs and will undermine the credibility of the internal audit function. As well, it was stated, the potential of the release of audit working papers has a chilling effect on the candour of individuals in their dealings with auditors. Even if that was the case, a harms test on such points could still have been explicitly written into this ATIA subsection, instead of passing it as a class exemption.

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Personal Information

19. (1) Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under this Act that contains personal information as defined in section 3 of the Privacy Act. Where disclosure authorized

(2) The head of a government institution may disclose any record requested under this Act that contains personal information if (a) the individual to whom it relates consents to the disclosure; (b) the information is publicly available; or (c) the disclosure is in accordance with section 8 of the Privacy Act. R.S. 1985, c. A-1, s. 19.

Sec. 3 and Sec. 8 of the Privacy Act also lack any explicit mention of potential harms from information disclosure. But Sec. 8 does have a discretionary public interest override in 8. (2)(m)(i).

[Privacy Act.] 8. (1) Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by the institution except in accordance with this section. (2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed [….] (m) for any purpose where, in the opinion of the head of the institution, (i) the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure, or (ii) disclosure would clearly benefit the individual to whom the information relates.

On the question of time limits, ATIA exemptions cannot be applied when the records in question are: - more than 20 years old for Sec. 16(1)(a), 21(1), 69(3)(a); - more than 15 years old for Sec. 22.1(1); - more than four years old for Sec. 69(3)(b)(ii); - more than two years old for Sec. 22.1(2) Yet some time limit is necessary for all exemptions in a reformed ATIA.

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Global Commentary

• Article 19, Principles of Freedom of Information Legislation, 1999, endorsed by the

United Nations:

‘Principle 4. Exceptions should be clearly and narrowly drawn and subject to strict “harm” and “public interest” tests. All individual requests for information from public bodies should be met unless the public body can show that the information falls within the scope of the limited regime of exceptions. A refusal to disclose information is not justified unless the public authority can show that the information meets a strict three-part test.

‘The three-part test: (1) the information must relate to a legitimate aim listed in the law; (2) disclosure must threaten to cause substantial harm to that aim; and (3) the harm to the aim must be greater than the public interest in having the information […]’

• Article 19, Model Freedom of Information Law, 2001:

‘33. (1) The provisions of sections 26–31 apply only inasmuch as the harm they envisage would, or would be likely to, occur at or after the time at which the request is considered. (2) Sections 27(c), 29, 30 and 31 do not apply to a record which is more than 30 years old.’

• The Carter Center, Access to Information, a Key to Democracy, 2002:

Key Principles. ‘Are the exemptions based on “harm tests” in which non-disclosure is only permissible if it can be shown that disclosure would harm a specified interest, such as national security?’

• National Security Archive, George Washington University, The World’s Right to

Know, 2002:

‘Any exceptions to release should be based on identifiable harm to specific state interests, although many statutes just recite general categories like "national security" or "foreign relations.’

• Commonwealth Parliamentary Association, Recommendations for Transparent

Governance, 2004:

‘(6.2) Exceptions should apply only where there is a risk of substantial harm to the protected interest, and where that harm is greater than the overall public interest in having access to the information.’

• World Bank, Legislation on freedom of information, trends and standards, 2004:

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‘Access should be denied only when disclosure would pose a serious risk of harm to a legitimate aim. Most exceptions meet this standard, but many laws include exceptions not subject to harm - often referred to as class exceptions.’

• United Nations Development Agency (UNDP), Key questions, UN Special

Rapporteur on Freedom of Information, 2006:

‘The following principles would need to be applied: …. 2. The disclosure should cause substantial harm to one of the purposes listed in the act (e.g. the disclosure of a report that relates to national defense should indeed have the potential to effectively harm national security).’

• Open Society Justice Initiative, Ten Principles on the Right to Know, 2006:

‘Principle 6. Governments may only withhold information from public access if disclosure would cause demonstrable harm to legitimate interests, such as national security or privacy.’

• Organization for Security and Co-operation in Europe (OSCE), Access to

information recommendations, 2007:

‘The official who wishes to withhold the information must identify the harm that would occur for each case of withholding.’

Other nations Let us consider how the topics of some of these ATIA exemptions that lack harms tests are dealt with in other national FOI laws and draft bills.163 (This section is not globally comprehensive; I have just found examples from several nations to illustrate principles.) Besides the harms tests, it is first essential to note that a majority of nations with FOI laws - unlike the ATIA - have much broader public interest overrides. In a legal dispute before an information commissioner or a court, each qualifying word in an FOI statute can tip the balance between record disclosure or not. For example, in Pakistan’s FOI Ordinance, Sec. 15, International relations, it is stated that '(1) Information may be exempt if its disclosure would be likely to cause grave and significant damage to the interests of Pakistan in the conduct of international relations.’

163 These three ATIA sections that lack harms tests will not be discussed in the international or provincial FOI portion of this chapter: Sec. 16 (3), information obtained by the RCMP in the course of carrying out policing functions in a province, because the RCMP records are under the federal mandate; Sec. 24, the disclosure of information prohibited by other statutes, because it is the topic of Chapter 11; and Sec. 21, policy advice and recommendations, because it is the topic of Chapter 7.

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Contrast this to the Canadian ATIA’s Sec. 15, permitting the withholding of records that ‘could reasonably be expected to be injurious to the conduct of international affairs….’164 Article 19 notes that the international FOI standard allows for refusal only if disclosure ‘would or would be likely to’ cause ‘substantial harm’ to a protected interest, adding that ‘this is a higher standard than causing prejudice to an interest, since “prejudice” may have a much wider interpretation, contrary to the requirement that exceptions be as narrow as possible.’165 On the matter of time limits for all exemptions166 - so necessary for the ATIA - the FOI laws of Croatia (Sec. 3) and the Czech Republic set valuable models. In the latter statute, Sec. 12: ‘The right to refuse information only lasts for the period, in which the reason for refusal lasts. In justified cases the subject will verify if reason for refusal still lasts.’

Similarly in the FOI law of Antigua, Sec. 34. (1), ‘The provisions of sections 27 to 32 apply only to the extent that the harm they seek to protect against would, or would be likely to, occur at or after the time at which the request is considered.’ (Those sections 27 to 32 deal with legal privilege, commercial records, law enforcement, defense and security, and policy creation.)

In the Mexican FOI statute, all information except the personal may only remain classified for 12 years, and in the law of Georgia, all public information created before 1990 is open.167 In general, several nations considered the concept of an FOI harms test as so important that, besides noting it within exemptions themselves, they underlined the concept in a separate section.168 For instance, in Peru’s law, Art. 15C - Regulation of Exemptions:

164 This Canadian ATIA exemption is all the more remarkable when one considers that strife-torn Pakistan - the world’s sole military dictatorship with an FOI law – share borders with Iran, Afghanistan, India and China, and so comparatively could claim much more need of a broad protection on this topic than Canada does. 165 Memorandum on the Law Commission of the Republic of Bangladesh Working Paper on the Proposed Right to Information Act 2002, by Article 19, London, 2004. http://www.article19.org/pdfs/analysis/bangladesh-right-to-information-act.pdf 166 Incidentally, Norway is the only nation in the world that permits royalty to determine this question in its FOI statute: ‘(7). The King may decide that documents which come under section 6 shall be publicly disclosable when, because of the lapse of time or for other reasons, it is obvious that the considerations which have justified exemption from public disclosure no longer apply.’ 167 http://www.freedominfo.org/countries/georgia.htm 168 Finland’s FOI statute explicitly sets out careful distinctions, in Sec. 17: ‘In the application of the provisions on document secrecy, attention shall also be paid to whether the secrecy obligation is independent of the case-by-case consequences of access (strict secrecy), whether any access to

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The cases established in articles 15, 15A and 15B are the only ones that can limit the right of access to public information, and they should be interpreted in a restricted manner since they represent a limit to a fundamental right. No exemptions to the present law may be established by norm of a lesser scale.

Overall, the best draft FOI bill is Kenya’s, in which all exemptions are discretionary, with harms tests and time limits – a combination unprecedented for a Commonwealth nation, and worth considering for the ATIA.

______________ • ATIA Sec. 13, information obtained from other governments in confidence -

mandatory, with no harms test, no time limit, no public interest override.

There is no such exemption explicitly stated in the FOI statutes of many nations, such as the United States, Mexico, Peru, the Netherlands and Poland. Most Commonwealth nations do include it, such as South Africa in Sec. 41(1), but this last one is discretionary, not mandatory as with the ATIA, and it also has a mandatory public interest override; New Zealand’s similar exemption in its FOI law Sec. 6 includes a harms test. Most remarkably, the Polish FOI law mandates that foreign policy records are open:

Art. 6.1. The following information is subject to being made available, in particular on: (1) internal and foreign policy, including:

a) intentions of legislative and executive authorities, b) drafts on normative acts, c) programmes on realisation of public tasks, method of their realisation,

performance and consequences of the realisation of these tasks. Incidentally, even when there is not an explicitly worded exemption for ‘information obtained from other governments in confidence’ in an FOI law, it is not impossible that an official might try to interpret such a record as overlapping with and being covered by some larger ambiguous exemption of ‘international relations'; this question might be decided by a commissioner or a court.

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the document is based on the adverse consequences of access (secrecy based on putative access), or whether any access to the document requires that there manifestly are no adverse consequences of access (secrecy based on putative secrecy).’

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• ATIA Sec. 19, personal information - mandatory, with no harms test, with the

exemption inactive if the person in question has been deceased for more than 20

years (per Sec. 3 of the Privacy Act ), and there is a public interest override.

All FOI statutes in the world have privacy protection sections, mostly mandatory (and many of these overlap with separate privacy laws). Yet even many of these provisions include the language of a harms tests, which is missing from the ATIA. The United States FOI Act, for instance, defines privacy in a narrower way:

552. (b) This section does not apply to matters that are [….] (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

The South African statute, in Sec. 34(1), prescribes the withholding of information if disclosure ‘would involve the unreasonable disclosure of personal information about a third party, including a deceased individual.’ India’s FOI law, as does Canada’s ATIA, includes a special public interest override within its privacy protection section, Sec. 8 (1)(j), but in India that is in addition to a general override.

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• ATIA sec. 22.1(1), draft internal audits – discretionary, with no harms test, with

exemption inactive in 15 years, and no public interest override.

This ATIA exemption is thankfully extremely rare in FOI statutes; absent, for instance, in the laws of the United States, Mexico, Peru, India, Poland, the Netherlands, and most Eastern European nations.169 Some form of it does appear in the FOI laws of several Commonwealth nations, such as the United Kingdom, but the UK statute, unlike the ATIA, contain a harms test for it:

33. Audit functions. … (2) Information held by a public authority to which this section applies is exempt information if its disclosure would, or would be likely to, prejudice the exercise of any of the authority's functions in relation to any of the matters referred to in subsection (1).

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169 It could occur one day that an official might use a somewhat ambiguous section to withhold a draft audit; for instance, the Netherlands FOI law, Sec. 10.2, states ‘Nor shall disclosure of information take place insofar as its importance does not outweigh one of the following:… (d) d. inspection, control and oversight by administrative authorities.’ But such interpretations would be for information commissioners or courts to decide, and so are beyond one’s ability to determine here.

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• ATIA Sec. 23, ‘information that is subject to solicitor-client privilege’ -

discretionary, with no harms test, with no time limit, no public interest override.

Here, one professional group is mandated to draft, interpret and apply the one FOI exemption that could most benefit itself, a privilege extended to no other sector of society, a situation that some could perceive as an inherent conflict of interest. (This observation is not a call for change nor even a complaint, per se, just a request for the state to recognize the situation for what it is.) From this reality, it comes as no surprise to note this section is so overbroadly worded and so overapplied in practice. For instance, politicians sometimes call in a lawyer to merely sit in on a closed door meeting to listen, and then term his or her presence ‘legal advice;’ lawyers also fight to keep secret their taxpayer-funded legal billing figures even after all appeals are finished. If such outcomes were not the intent of parliament, then the ATIA should be amended to render the solicitor-client privilege much more narrow and specific, to settle such disputes before they arise. (The exemption also overlaps with that for ‘policy advice,’ which can sometimes include legal advice, and this needs better demarcation.) The lack of any time limit (conceivably even for centuries) for legal advice is simply indefensible, as noted by former Information Commissioner John Reid:

It has been obvious over the past 22 years that the application and interpretation of section 23 by the government (read – Justice Department) is unsatisfactory. Most legal opinions, however old and stale, general or uncontroversial, are jealously kept secret. Tax dollars are used to produce these legal opinions and, unless an injury to the interests of the Crown can reasonably be expected to result from disclosure, legal opinions should be disclosed.170

The solicitor-client exemption as described in the ATIA is present in many FOI laws, but not all; absent for example in the United States, India, Poland, and the Netherlands. Even where does occur in some form, however, it is often far more narrowly defined than in the ATIA, with language indicating what harms could occur from record release. In the UK law, a record cannot be withheld after 30 years under Sec. 42. Legal professional privilege - advisable for the ATIA. In Mexico’s statute, Art. 13, information is ‘classified’ if its disclosure could impair ‘procedural strategies in judicial or adminis-trative processes that are ongoing.’ In Peru’s law, ‘exempt’ records in Sec. 15.B include:

4. Information prepared or obtained by the Public Administration’s legal advisors or attorneys whose publication could reveal a strategy to be adopted in the defense or procedure of an administrative or judicial process, or any type of

170 John Reid, The Access to Information Act - Proposed Changes and Notes. Ottawa, 2005 http://www.infocom.gc.ca/specialreports/2005reform-e.asp

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information protected by professional secrecy that a lawyer must keep to serve his client. This exemption ends when the process finishes.

Canadian commentary

• Open and Shut, report by MPs’ committee on Enhancing the Right to Know, 1987:

‘3.7. The Committee recommends that the Acts be amended to clarify that the classes of information listed in section 15 [international affairs, defense, security] of the Access to Information Act and incorporated by reference in section 21 of the Privacy Act are merely illustrations of possible injuries; the overriding issue should remain whether there is an injury to an identified state interest which is analogous to those sorts of state interest listed in the exemption.’

• The Access to Information Act: A Critical Review, by Sysnovators Ltd., 1994:

‘Recommendation 26: That all exemptions under the Access to Information Act with the exception of section 19, paragraph 20(1)(a), and any new provision dealing with Cabinet Confidences, be discretionary in nature and injury-based.’

• John Reid, former Information Commissioner of Canada, model ATIA bill, 2005

(underlined parts are Mr. Reid’s amendments to the existing Act):

11. Section 13 of the Act is replaced by the following:

13. (1) Subject to subsection (2), the head of a government institution may refuse to disclose any record requested under this Act if (a) the record contains information that was obtained in confidence from

(i) the government of a foreign state or an institution thereof, (ii) an international organization of states or an institution thereof, (iii) the government of a province or an institution thereof, (iv) a municipal or regional government established by or pursuant to an Act of the legislature of a province or an institution of such a government, or (v) an aboriginal government; and (b) disclosure of the information would be injurious to relations with the government, institution or organization. […]

[And there are harms tests for other sections, advised by Mr. Reid.]

• Justice Gomery report, Restoring Accountability, 2006:

‘At present, the [Canadian ATI] Act gives the Government the discretion to withhold records if they fall within certain categories of documents listed in the Act. The Commission supports a different approach, whereby the first rule would be that records must be disclosed, unless their disclosure would be injurious to some other important and competing interest (in other words, an “injury test” applies). Similarly, the Commission

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supports amendments that would substantially reduce the kinds of records that the Government may withhold on the basis of the injury test, such as [sec. 13, 16, 18, 20, 21, 23, 69].’

• Bill C-556, introduced by Bloc Quebecois MP Carole Lavallée, 2008:

Definitions: ‘“trade secret” means any information, including a formula, pattern, compilation, program, device, product, method, technique or process (a) that is used, or may be used, in business for any commercial advantage; (b) that derives independent economic value, whether actual or potential, from not being generally known to the public or to other persons who can claim economic value from its disclosure or use; (c) that is the subject of reasonable efforts to prevent it from becoming generally known to the public; and (d) the disclosure of which would result in harm or improper benefit to the economic interests of a person or entity’

[….] 10. Section 13 of the Act is replaced by the following:

13. (1) Subject to subsection (2), the head of a government institution may refuse to disclose any record requested under this Act if (a) the record contains information that was obtained in confidence from (i) the government of a foreign state or an institution thereof, (ii) an international organization of states or an institution thereof, (iii) the government of a province or an institution thereof, (iv) a municipal or regional government established by or pursuant to an Act of the legislature of a province or an institution of such a government, or (v) an aboriginal government; and (b) disclosure of the information would be injurious to relations with the government, institution or organization.

(2) The head of a government institution shall disclose any record requested under this Act that contains information described in subsection (1) if the government, organization or institution from which the information was obtained (a) consents to the disclosure; or (b) makes the information public.

(3) In this section, “aboriginal government” means an aboriginal government listed in Schedule I.1.

11. Paragraph 14(b) of the Act is replaced by the following: (b) on strategy or tactics adopted or to be adopted by the Government of Canada relating to the conduct of federal-provincial negotiations.

[…] 12. (2) Subsections 16(3) and (4) of the Act is replaced by the following: […] (4) The head of the Canadian Broadcasting Corporation 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 integrity or independence of the institution’s news gathering or programming activities.

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[…] 19. Section 23 of the Act is replaced by the following: 23. The head of a government institution may refuse to disclose any record requested under this Act if (a) the record contains information that is subject to solicitor-client privilege; and (b) disclosure of the information could reasonably be expected to be injurious to the interests of the Crown.

21. Section 25 of the Act is renumbered as subsection 25(1) and is amended by adding the following: (2) Where, under subsection (1), a part of a record is, for the purpose of being disclosed, severed from a record that is otherwise subject to solicitor-client privilege, the remaining part of the record continues to be subject to that privilege.'

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Canadian provinces Consider how the subjects of some of the ATIA exemptions that lack harms tests are dealt with in the provincial and territorial FOI laws. Most importantly, none of these twelve statutes excludes cabinet confidences from its scope entirely, as the ATIA does in Sec. 69. Others below are worth noting. • ATIA Sec. 13, information obtained from other governments in confidence -

mandatory, with no harms test, no time limit, no public interest override.

All provinces have some equivalent to this section, but most are more open, with a harms test. The exemption is discretionary in nine FOI laws, those of Nova Scotia (Sec. 12 (1)(b)), Newfoundland and Labrador (Sec. 23 (1)(b)), Quebec (Sec. 18), the Yukon (Sec. 20 (1)(b)), Ontario (Sec. 15), British Columbia (Sec. 16 (b)), Alberta (Sec. 21 (1)(b)), the Northwest Territories (Sec. 16 (1)(c)), and Prince Edward Island (Sec. 19 (1)(b)). There are time limits to the exemption in seven FOI laws, those of Nova Scotia, Newfoundland, the Yukon, British Columbia, Alberta, and the Northwest Territories (15 years each), and Prince Edward Island (20 years). All Canadian provinces and territories (except New Brunswick) have general public interest overrides in their FOI statutes, which trump this exemption. Overall, New Brunswick, Quebec, Manitoba and Saskatchewan lag far behind other provinces on this topic. (The Quebec law even lacks the qualifying term ‘in confidence’ when citing information received from other governments.) Usually in a provincial FOI law, the exemption on ‘harm to intergovernmental relations’ is noted in a separate subsection from one marking ‘information received in confidence from a government’; they are not combined into one, because provincial lawmakers understood that not all records received in private need automatically result in harm if released. The ATIA, by contrast, does not incorporate this enlightened distinction.

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• ATIA Sec. 19, personal information - mandatory, with no harms test, with the

exemption inactive if the person in question has been deceased for more than 20

years (per Sec. 3 of the Privacy Act ), and there is a public interest override.

There is, by contrast, language suggestive of a harms test in the privacy exemption sections in the FOI statutes of nine province and territories. There, personal records must be withheld if disclosure would be an ‘invasion’” of the third party’s privacy in Saskatchewan (Sec. 29); an ‘unjustified invasion’ in Ontario (Sec. 21); and an ‘unreasonable invasion’ in Nova Scotia (Sec. 20), the Yukon (Sec. 25), Manitoba (Sec. 17), British Columbia (Sec. 22), Alberta (Sec. 17), the Northwest Territories (Sec. 23) and Prince Edward Island (Sec. 15).

______________ • ATIA Sec. 22.1(1), draft internal audits – discretionary, with no harms test, with

exemption inactive in 15 years, and no public interest override.

Nine provincial and territorial FOI laws have no such exemption for draft audits.

In Quebec’s FOI statute, unfortunately, there appears to be an amorphous exclusion that an official could attempt to extend to draft audits: Sec. 9, which grants the applicant the right to government documents, although ‘The right does not extend to personal notes written on a document or to sketches, outlines, drafts, preliminary notes or other documents of the same nature.’ In the same law, Sec 41 of Part 6 entitled ‘Information affecting auditing,’ might be applied for the same purpose:

41. The Auditor General or a person carrying out an auditing function in or for a public body may refuse to release or confirm the existence of information the disclosure of which would be likely to (1) hamper an audit in progress; (2) reveal an auditing program or operation plan; (3) reveal a confidential source of information regarding an audit; or, (4) seriously impair the power of appraisal granted to the Auditor General pursuant to sections 38, 39, 40, 42, 43, 43.1 and 45 of the Auditor General Act (chapter V-5.01).

Both of those sections in the Quebec act have no time limits, but exemptions in the two provincial laws cited below do. In Alberta’s FOI statute:

(7) The right of access to a record does not extend to a record relating to an audit by the Chief Internal Auditor of Alberta that is in the custody of the Chief Internal Auditor of Alberta or any person under the administration of the Chief Internal Auditor of Alberta, irrespective of whether the record was created by or for or supplied to the Chief Internal Auditor of Alberta.

(8) Subsection (7) does not apply to a record described in that subsection (a) if 15 years or more has elapsed since the audit to which the record relates was completed, or (b) if the audit to which the record relates was discontinued or if no progress has been made on the audit for 15 years or more.

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In Prince Edward Island’s FOI law, the time limit is shorter yet:

22 (1) The head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to reveal [….] (h) the contents of a formal research or audit report that, in the opinion of the head of the public body, is incomplete, unless no progress has been made on the report for at least three years.

Finally, these three provincial FOI laws - unlike the ATIA - have general public interest overrides that could permit the release of draft audits.

______________ • ATIA Sec. 23, ‘information that is subject to solicitor-client privilege’ -

discretionary, with no harms test, with no time limit, no public interest override.

This is one of the rare ATIA clauses that basically matches those of the FOI laws of the provinces and territories; all of the latter have similar exemptions, sometimes phrased slightly differently or more broadly, and all the provincial exemptions are also discretionary (except in New Brunswick), with no time limits. The key difference is that - unlike in the ATIA - all the other laws (except in New Brunswick) have general public interest overrides, which can permit the release of solicitor-client records. Confidentiality on solicitor-client information, of course, also has a powerful and longer tradition in common law.

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Chapter 7 ~ Private Counsel

Policy Advice

Is the exemption for policy advice in the FOI law too broad?

Moving now to more specific problems, this chapter and the next examine two freedom of information statutory exemptions. Ideally, one would produce a comparative chapter on every type of FOI exemption. But because the provisions for policy advice and cabinet records are both the most overbroadly worded and overapplied exemptions in the Access to Information Act, they require the closest consideration, and they most urgently require amendment. The value of most other ATIA exemptions – e.g., for law enforcement, privacy, national defense – is readily apparent to the public, and as a matter of principle I do not dispute their merits. But the value of exemptions for policy advice and cabinet records - at least as they are currently worded in this ATIA - may be far less obvious to the general observer, and sometimes appear more self-interested than public spirited. In fact, these two innocuous-seeming sections too often overlap and work in tandem like weeds to choke the living plant of FOI. Much commentary has been written on this topic by judges, information commissioners and academics. Yet the main points must be tackled here: why is the policy advice exemption necessary, and if it is indeed necessary, what form should it take?171 To begin, whenever legislators raise the prospect of amending an FOI statute, senior officials routinely - and successfully - argue that the public’s access to records on policy development would inhibit decision-making, because the threat of public scrutiny would curb free and frank discussions, inhibit the candour of advice and therefore seriously hamper the smooth running of government. In Britain, for instance, a former senior civil servant at the Treasury told the Financial Times that policy advice should stay private because the media would inevitably focus on the downsides identified in any policy; that would simply deter his ex-colleagues from putting their policy assessments in writing, further undermining conventional Whitehall

171 In the early 1980s (and still in some forms recently), Canadian Treasury Board guidelines set a harms test for Sec. 21, stating that records which would otherwise be exempt under the section should only be withheld if their disclosure would ‘result in injury or harm to the particular internal process to which the document relates.’ Happily, a Canadian administration put a harms principle into writing. But such guidelines have not the legal force of a statute, of course, and could be annulled any day; hence an ATIA amendment to guarantee this right is essential.

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procedures: ‘The more they get into the public domain, the more they compromise the internal policy debate.’172 In rejecting an access applicant’s challenge to the usage of the ATIA’s policy advice exemption, one Canadian Federal Court ruling bordered on the apocalyptic:

It would be an intolerable burden to force ministers and their advisors to disclose to public scrutiny the internal evolution of the policies ultimately adopted. . . . In the hands of journalists or political opponents this is combustible material liable to start a fire that could quickly destroy government credibility and effectiveness.173

We ask lawmakers to consider the possibility that continuously reiterating such claims could result in a negative self-fulfilling prophecy.174 By doing so, some traditionalist bureaucrats who began their work in the pre-FOI age – and who quite frankly wish that transparency laws had never been passed – may help to induce fears of supposed harms in the new breed of public servant raised in the (relatively) stronger culture of openness.175 But of course there are contrary viewpoints. ‘The argument that the fear of advice becoming public would constrain public servants from giving frank and fearless advice is rubbish,’ wrote one Canberra journalist with refreshing Australian candour. ‘The contrary 172 Publication rules need rethinking, says ex-chancellor, by Ben Hall and Michael Peel. Financial Times (London), April 3, 2007. Further, Kenneth Clarke, a former chancellor who served at the Treasury in the 1990s, told the BBC that releasing internal documents carried ‘this bizarre assumption that you should always follow the advice you are given.’ No sensible chancellor simply followed the advice of the Treasury bureaucrats, he said. ‘You have a look at it, consider it, treat it with respect and then make your own judgment.’ 173 Canadian Council of Christian Charities v. Canada (Minister of Finance), [1999] 4 F.C. 245 (Fed. T.D.), additional reasons at [1999] 4 C.T.C. 45 (Fed. T.D.), at 260-262, Evans J. 174 Candidly speaking, how often might such claims arise from self-interest? John Reid put it well: ‘After I had been confirmed as federal Information Commissioner, I met with the former Commissioner, John Grace, to get his advice. One thing he said struck me in particular; he said that in his seven years as Privacy Commissioner and eight years as Information Commissioner (a total of 15 years spent reviewing the records which government wanted to withhold from Canadians) he hadn't seen a really good secret. My experience is much the same over the first year of my term. For the most part, officials love secrecy because it is a tool of power and control, not because the information they hold is particularly sensitive by nature.’ - Federal Information Commissioner John Reid, Remarks to CNA Publishers Forum on Access to Information, Nov. 25, 1999. http://www.infocom.gc.ca/speeches/speechview-e.asp?intspeechId=17 175 In Israel’s FOI law, Sec. 9.B, ‘A public authority is not obliged to provide information in any of the following categories: […] 5. Information concerning internal management of the public authority, which does not concern the public, and is not important to it.’ This memorably phrased provision regrettably echoes the spirit if not the letter of Canada’s ATIA Sec. 21(1)(d).

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is being proved. If public servants think advice will remain secret for 30 years, they will dish up any amount of career-saving tosh that their masters want to hear.’176 In one Australian FOI legal dispute on policy records, as an Australian press report summarized it, ‘the [government] arguments that the Court of Appeal overturned had rested on the claims that public servants have to be secretive or they can’t work; or that the public is too stupid to understand anything complex and would be confused by the truth held in government documents.’177 In Scotland’s FOI law, there are harms tests in Sec. 30, regarding ‘prejudice to effective conduct of public affairs.’ Yet it is reported that many senior Scottish civil servants had hoped for an automatic presumption that it would be harmful to release information no matter what advice was given. Scotland’s Information Commissioner Kevin Dunion countered that such an outlook must change: ‘The act should not be bent to meet civil servants' sensitivities - they've got to toughen up.’178

As James Travers of the Toronto Star put it: ‘the assumption that the actions and decisions of a democratic government can't withstand too much exposure demeans voter intelligence and the institution of Parliament.’179 Even in Canada, governmental outlooks may be gradually softening on this question.

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The Canadian government speaks mainly of the supposed harms and not the potential benefits of public transparency for policy advice. The latter, in fact, are more numerous.180

176 FOI process needs urgent overhaul to halt needless secrecy, by Crispin Hull. Canberra Times (Australia), Nov. 10, 2007. Mr. Hull sensibly added: ‘If there is no significant change the losers will be the public and, indeed, the politicians. Sure, some things have to remain secret for a while matters of public security, properly and narrowly defined. But lots of innocuous material would be better in the public domain. We can learn from past mistakes. And the prospect of later publicity would add greater rigour to political and administrative processes.’ 177 Official Spin: Censorship and Control of the Australian Press 2007. Chapter: Informing Freedom, by Michael McKinnon and Matthew Moore. The Media, Entertainment & Arts Alliance 2007 report into the state of press freedom in Australia http://www.alliance.org.au/resources/ 178 Firm hand with a big stick. The New Zealand Herald, December 22, 2007 179 Harper: Do as I say, not as I do, by James Travers, The Toronto Star, April 13, 2006 180 As one Australian newspaper put it: ‘The public service, both state and federal, degrade its [FOI law] intent in a far more banal manner. Releasing information could "inhibit an officer's ability to provide frank and candid advice in the future". Does this mean the converse is less important - that not releasing information could inhibit the public's ability to assess the issue at

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The Commonwealth Human Rights Initiative considered the traditional claims on policy advice, and concluded:

But the area of official decision-making – how criteria are applied, assessments made, contracts awarded, applications rejected, budgets prepared, or benefits distributed, whose advice counts and whose is ignored – is traditionally an area prone to bias and abuse of power. Without the possibility of disclosure, there is little possibility of checking these tendencies. Conversely, it has been shown that just the threat of disclosure improves the quality of government decision-making.181

As well, a 1995 report of the Australian Law Reform Commission found that: ‘the FOI Act has focused decision-makers’ minds on the need to base decisions on relevant factors and to record the decision-making process. The knowledge that decisions and processes are open to scrutiny... imposes a constant discipline on the public sector.’182 Even some of those who insist that advice must be secreted before or during active consideration of an issue may find themselves at loss to assert why it must also remain so after the issue has been decided.183 Why, for example, must such historical records be withheld for 20 years in the ATIA’s Sec. 21(1) (d)? As the Commonwealth Initiative put it: ‘While it may sometimes be necessary to protect official information from disclosure at certain stages of policy-making, the same degree of confidentiality is hardly necessary once the policy has actually been agreed.’184 Recognizing this, in 1994 the United Kingdom Government decided to release the minutes of the monthly meetings between the Chancellor of the Exchequer and the Governor of the Bank of England – information that had previously been kept a closely guarded secret – six weeks after each meeting. (This appears the more surprising for the U.K.’s position as this country’s model for governmental secrecy, passing an FOI law nearly two decades after Canada did.)

hand?’ - Damming the flow of information is to damn voters to ignorance. Editorial. The Age (Melbourne, Australia), July 24, 2008 181 Commonwealth Human Rights Initiative, 'Open Sesame: Looking for the Right to Information in the Commonwealth.' New Delhi, India, 2003 182 Australian Law Reform Commission, (1995) Open Government: A Review of the Federal Freedom of Information Act 1982, ALRC 77, p.16: http://www.austlii.edu.au/au/other/alrc/publications/reports/77/ALRC77.htm 183 As well, it is always worth bearing in mind that policy advice records could still be withheld in whole or in part due to other ATIA exemptions, e.g., if such a document contained someone’s personal information, or on security or defense grounds. 184 Commonwealth, op.cit.

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‘Initial fears that the policy would create self-censored and bland discussions proved ill-founded. The London Times has commented: “Instead of papering over disagreements with platitudes, the minutes are impressively clear and sharp.”’185 But there is a more pressing and personal motive for wishing to proffer advice only in private. It is reported that some policy analysts and other writers (particularly junior level) dread being identified as the one pointing out flaws in the sometimes well-meaning but misguided policies of politicians or senior bureaucrats. In the Canadian public forum at least, ‘Civil servants who inadvertently or otherwise say things that contradict, or even cast the slightest doubt on, the wisdom of the government’s policy are severely reprimanded.’186 For this reason and others, a strong federal whistleblower protection statute is essential (the topic of Chapter 15). I am aware that this measure might never be enough to ease some public servants’ disquiet, but it might help enable others to ‘speak truth to power.’ Positively, the Commonwealth Initiative suggests that publicity on police advice could serve as an antidote to backroom pressures from lobbyists and others: ‘Doing public business in public also ensures that honest public servants are protected from harassment and are less liable to succumb to extraneous influences.’187 Most FOI advocates do not call for the deletion of the ATIA policy advice exemption entirely. Rather, they urgently call for strong new provisions for transparency.

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• Canada’s Access to Information Act, 1982:

Operations of Government

Advice, etc. 21. (1) The head of a government institution may refuse to disclose any record requested under this Act that contains (a) advice or recommendations developed by or for a government institution or a minister of the Crown, (b) an account of consultations or deliberations in which directors, officers or employees of a government institution, a minister of the Crown or the staff of a minister participate.

185 Commonwealth, op.cit. 186 Jeffrey Simpson, The Friendly Dictatorship. Toronto: McCelland and Stewart, 2001 187 Commonwealth, op.cit.

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(c) positions or plans developed for the purpose of negotiations carried on or to be carried on by or on behalf of the Government of Canada and considerations relating thereto, or (d) plans relating to the management of personnel or the administration of a government institution that have not yet been put into operation, if the record came into existence less than twenty years prior to the request. Exercise of a discretionary power or an adjudicative function

(2) Subsection (1) does not apply in respect of a record that contains (a) an account of, or a statement of reasons for, a decision that is made in the exercise of a discretionary power or an adjudicative function and that affects the rights of a person; or (b) a report prepared by a consultant or an adviser who was not a director, an officer or an employee of a government institution or a member of the staff of a minister of the Crown at the time the report was prepared; 2006, c. 9, s. 149.

For the present, at least, the wording of the ATIA’s Sec. 21 would ideally be narrowed according to the draft bill by John Reid (see below), the bill whose provisions the current ruling party promised to pass into law but did not. Sec. 21 needs the addition of a strong harms test, a public interest override, and far shorter time limits.

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Global Commentary

• Article 19, Model Freedom of Information Law, 2001:

‘32. (1) A body may refuse to indicate whether or not it holds a record, or refuse to communicate information, where to do so would, or would be likely to: (a) cause serious prejudice to the effective formulation or development of government policy; (b) seriously frustrate the success of a policy, by premature disclosure of that policy; (c) significantly undermine the deliberative process in a public body by inhibiting the free and frank provision of advice or exchange of views; or (d) significantly undermine the effectiveness of a testing or auditing procedure used by a public body. (2) Sub-section (1) does not apply to facts, analyses of facts, technical data or statistical information.’

• Commonwealth Secretariat, Model Freedom of Information Bill, 2002:

‘Formulation of policy. 26.(1) A document is an exempt document if the disclosure of the document under this Act would prejudice the formulation or development of policy by

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government, by having an adverse effect on (a) the free and frank provision of advice; or (b) the free and frank exchange of views for the purposes of deliberation.

‘(2) Where a document is a document referred to in subsection (1) by reason only of the matter contained in a particular part or particular parts of the document, a public authority shall identify that part or those parts of the document that are exempt. (3) Subsection (1) does not apply to a document in so far as it contains publicly available factual, statistical, technical or scientific material or the advice of a scientific or technical expert which analyses or gives an expert opinion of such material.’

• The Carter Center, Access to Information, a Key to Democracy, 2002:

Key Principles. ‘Does it provide access to some internal government policy advice and discussion in order to promote public understanding, debate and accountability around public policy-making? …. Another common exemption found in many acts is the “deliberative process”, which exempts from disclosure an official document that contains opinions, advice or recommendations and/or a record of consultations or deliberations.

‘However, this exemption should clearly link the type of document to any form of mischief. Where such clauses appear, such as in the U.S. or South African law, they are linked to the notion of candour; the idea is that policy-makers should not feel restricted in terms of their candour with each other during the decision-making phase. If release of the document would not have a chilling effect on deliberation, the document should not be exempt from disclosure.’

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Other nations Amongst the FOI statutes of 68 nations, I counted 31 laws with an exemption for advice or recommendations, described in various terms, and they are most prevalent in Commonwealth nations.188 I could find no such specific exemption in the FOI laws of these 18 nations: South Korea, India, Finland, Sweden, Croatia, Czech Republic, Georgia, Hungary, Lithuania, Slovakia, Slovenia, Macedonia, Moldova, Montenegro, Romania, Serbia, Uzbekistan, and Poland. The absence of such FOI exemptions are most frequently seen in Eastern Europe, for

188 Whether such records would be withheld under some national FOI statutes is not entirely clear, sometimes perhaps due to translation issues. Policy advice and recommendations might be included under such descriptions no more specific than ‘the secrecy of the proceedings of the Government and proper authorities coming under the executive power’ (France’s FOI law), or ‘working documents which a government authority has written for its own use’ (Iceland’s FOI law). Still, it could be worse: records of ‘opinions’ or ‘recommendation’ are explicitly excluded from the scope of Pakistan’s and Turkey’s FOI laws entirely.

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probably an awareness of a recent authoritarian past gives one a very different perspective on the need for government transparency (including for policy advice) and its inseparable link to the concepts of democracy and basic human rights. In the draft governmental FOI bills of 29 nations (or quasi-national jurisdictions), there are 13 with an exemption for advice or recommendations, known by various terms - mainly and expectedly in Commonwealth nations. There is no such specific exemption within the draft FOI bills of Bangladesh, Brazil, Indonesia and Paraguay. Policy advice secrecy is not a tradition in non-Commonwealth nations. In Poland’s FOI statute, the transparency for policy records, is remarkable:

Art. 6.1. The following information is subject to being made available, in particular on: 1) internal and foreign policy, including: (a) intentions of legislative and executive authorities, (b) drafts on normative acts, (c) programmes on realisation of public tasks, method of their realisation, performance and consequences of the realisation of these tasks.

The Netherlands also has a most progressive FOI act, wherein some policy recommendations actually require proactive publication, a feature unimaginable in a Commonwealth transparency law.

9.1. The administrative authority directly concerned shall ensure that the policy recommendations which the authority receives from independent advisory committees, together with the requests for advice and proposals made to the advisory committees by the authority, shall be made public where necessary, possibly with explanatory notes. 9. 2. The recommendations shall be made public no more than four weeks after they have been received by the administrative authority. Their publication shall be announced in the Netherlands Government Gazette or in some other periodical made generally available by the government. Notification shall be made in a similar manner of non-publication, either total or partial [….]

This section’s openness, however, is limited by other clauses which, if included in the ATIA, could relieve the fears of Canadian government analysts unwilling to be identified:

11. 1. Where an application concerns information contained in documents drawn up for the purpose of internal consultation, no information shall be disclosed concerning personal opinions on policy contained therein. 11. 2. Information on personal opinions on policy may be disclosed, in the interests of effective, democratic governance, in a form which cannot be traced back to any individual. If those who expressed the opinions in question or who supported them agree, information may be disclosed in a form which may be traced back to individuals.

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11. 3. Information concerning the personal opinions on policy contained in the recommendations of a civil service or mixed advisory committee may be disclosed if the administrative authority directly concerned informed the committee members of its intention to do so before they commenced their activities.

In the Netherlands, after ‘personal’ opinions are defined and redacted, much useful information could still be released. If Canadian officials still assert that the ATIA policy advice exemption is indispensable, they could study the living examples of the 19 national governments that have no such explicit exemption in their FOI laws at all and yet seem to be functioning nonetheless, as far as I know. In these countries, the absence of the advice exemption perhaps might not be causing, as the Canadian ruling cited above warned, an ‘intolerable burden,’ nor even ‘a fire that could quickly destroy government credibility and effectiveness.’ If it did, one might be able to view flames and black clouds arising from Poland and Finland, nations consumed in conflagrations, reduced to smoking ruins because they had neglected to include policy advice exemptions in their freedom-of-information statutes. . . .

______________ Some other examples could be beneficial for a reformed Access to Information Act. Regarding time limits for withholding policy advice records, the best models can be found in the FOI statutes of Latvia, Mexico, Peru, and the draft FOI bills of Tanzania and Sierra Leone, all in which the use of the exemption ends when the policy topic is decided, not 20 years after the fact as in the Canadian ATIA. In Latvia’s act, Sec. 6(3):

The status of restricted access information may be applied to information for the internal use of institutions during the process of preparation of matters only up to the time when the institution takes a decision regarding the particular matter [….]

Peru’s law, Art. 15B adds a further deciding element for policy openness - publicity:

The right to access to information shall not include the following: 1. Information that contains advice, recommendations or opinions produced as part of the deliberative or consulting process before the government makes a decision, unless the information is public. Once that decision is made this exemption is terminated if the public entity chooses to make reference to the advice, recommendations and opinions.

As a matter of principle - as in Peru law’s cited above - the fact of a policy decision being made public should greatly reduce or eliminate the waiting time for all policy records in the ATIA, for they generally become relatively less sensitive with time.

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In the United Kingdom’s FOI law, in Sec. 35(2), once a decision is taken, statistical data relating to the decision cannot be withheld under the exemptions for policy formulation or ministerial communications. This feature should be explicitly included in the ATIA. In some other FOI statutes, time delays are present but short indeed. In Portugal’s transparency law, access to documents in proceedings that are not decided or in the preparation of a decision can be delayed until the proceedings are complete or up to one year after they were prepared. Bulgaria’s law mandates that policy advice records may not be withheld after two years from their creation. Amongst some current or former Commonwealth nations, the time limit for withholding policy advice records is 10 years - in Zimbabwe, Uganda, and in the draft bills of Guyana and Sri Lanka. Although ideally there would be no time delay for policy advice on concluded topics in the ATIA, a two year limit would be a tolerable compromise for now.

On the matter of a harms test to the exemption, it is difficult to think of a persuasive rationale that could be raised against the addition of one to the ATIA Sec. 21. Harms should be qualified as ‘serious’ or ‘significant.’ Such a test exists in the draft FOI bill of Kenya, Sec. 5. (1), where the release of policy advice records may be blocked if such would have the potential:

(f) to significantly undermine a public authority’s ability to give adequate and judicious consideration to a matter concerning which no final decision has been taken and which remains the subject of active consideration;

At least three Commonwealth jurisdictions - South Africa, the United Kingdom and Scotland - do include a harms test in certain of their policy advice exemption, and such a test, with ‘substantial’ injury, should be included in the ATIA. In South Africa’s statute, Sec. 44 (1), records of recommendations or consultations may be withheld:

(b) if —

(i) the disclosure of the record could reasonably be expected to frustrate the deliberative process in a public body or between public bodies by inhibiting the candid—

(aa) communication of an opinion, advice, report or recommendation; or

(bb) conduct of a consultation, discussion or deliberation; or

(ii) the disclosure of the record could, by premature disclosure of a policy or contemplated policy, reasonably be expected to frustrate the success of that policy.

The United Kingdom’s FOI law expresses a harms test in regards to local public bodies:

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36. (2) Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act [….]

(b) would, or would be likely to, inhibit (i) the free and frank provision of advice, or (ii) the free and frank exchange of views for the purposes of deliberation, or (c) would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.

A harms test, per se, is not included in Sec. 35, regarding the policy advice of central government. Yet, writes Maurice Frankel on this section, ‘In practice, the public interest balancing test does require the government to show why it would be harmful to the public interest for the information to be disclosed and to show that the harm to the public interest outweighs the public interest in disclosure.’ Scotland’s exemption, in Sec. 30, echoes the terms of the U.K. Sec. 36 but is stronger; here, such release must ‘prejudice substantially’ the effective conduct of public affairs. A matter closely related to a harms test is the need for a strong mandatory public interest override to the policy advice exemption.189 A few FOI laws include such an override within the policy exemption itself, such as in Kosovo’s statute, Sec. 4.5., where records are withheld ‘if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure.’ But a far better course is to include a general public interest override for all FOI exemptions, which many nations do. (See Chapter 5.) In regards to what factual papers may be released notwithstanding the policy advice exemption, Canada’s ATIA cites merely ‘a report,’ yet many other national and Canadian provincial FOI exemptions are far more detailed.190 One of the most comprehensive is found in Sec. 15 of Zimbabwe’s law, below. A good course for the ATIA would be to list records such as these, while noting they are just samples (i.e., release of factual information is mandated, ‘including but not restricted to’ such designated records).

189 There is a sort of reverse public interest override within the policy advice exemptions of the FOI laws of Australia, Ireland, and the draft FOI bills of Guyana and Sri Lanka. Here, the state must consider if ‘the public interest’ is a ground to withhold policy advice, not to release it. 190 The factual background paper exception to the exemption is present but much narrower in the United Kingdom’s law, applying to just two of the four types of policy advice records: ‘35 (2) Once a decision as to government policy has been taken, any statistical information used to provide an informed background to the taking of the decision is not to be regarded - (a) for the purposes of subsection (1)(a), as relating to the or development of government policy, or (b) for the purposes of subsection (1)(b), as relating to Ministerial communications.’ As well, the UK also has the only FOI statute I could find (along with the draft FOI bill of Sierra Leone) that explicitly permits the state to refuse to confirm or deny the very existence of a policy advice record, in Sec. 35(3).

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15. Protection of advice relating to policy (1) The head of a public body may not disclose to an applicant information relating to advice or recommendations given to the President, a Cabinet Minister or a public body.

(2) Subsection (1) shall not apply to the following classes of information

(a) a public opinion poll;

(b) a statistical survey;

(c) an appraisal of an employee of the public body;

(d) a forecast of the economy;

(e) information relating to the state of the environment;

(f) an audit or performance report of a public body;

(g) a consumer test report or a report of a test carried out on a product to test equipment of the public body;

(h) a feasibility or technical study, including a cost estimate, relating to a policy or project of the public body;

(i) a report on the results of a field research undertaken before a policy proposal is formulated;

(j) a report of a committee, council or similar body that has been established to consider any matter and make reports or recommendations to a public body;

(k) a plan or proposal to establish a new programme or to change a programme, where the original plan or proposal had been approved or rejected by the head of the public body;

(l) information that the head of the public body has cited publicly as the basis for making a decision or formulating a policy;

(m) a decision, including the reasons thereof, that is made in the exercise of a discretionary power or an adjudicative function that affects the rights of the applicant;

(n) information contained in a record that has been in existence for 10 or more years.

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POLICY ADVICE RELEASED IN ISRAEL

The Israel Supreme Court handed down a landmark decision in January 2006, ruling that, in principle, publicly-funded organizations must provide information about internal meetings and consultations in accordance with the nation’s Freedom of Information Law. Until now there had been no definitive interpretation of this detail of the law and many public organizations have refused to divulge internal information. Because of the importance of the question, Supreme Court President Aharon Barak appointed an expanded panel of seven justices to consider it. The issue was raised in the form of two separate appeals by the Council for Higher Education against lower court decisions ordering it to provide information to the Haaretz newspaper and to Shahar, a non-profit organization for the advancement of education. The dispute revolved on the definition of Article 9 (b)(4) of the law, by which an agency is not obliged to reveal ‘information regarding internal deliberations memos of internal consultations among public servants, their colleagues or advisors, or statements made in the context of an internal investigation, as well as opinions drafts advice or recom-mendations given in the decision-making process except for those specified by law.’ Justice Esther Hayut wrote that in this case the institution must weigh the public's right to know and the public interest against the harm that could be caused by granting its request, according to the individual merits of each case. - From Supreme Court: Publicly-funded bodies must provide freer information, by Dan Izenberg. The Jerusalem Post, January 22, 2006

Canadian commentary

• Open and Shut, report by MPs’ committee on Enhancing the Right to Know, 1987:

‘3.19. The Committee recommends that section 21 of the Access to Information Act be amended not only to contain an injury test but also to clarify that it applies solely to policy advice and minutes at the political level of decision making, not factual information used in the routine decision-making process of government. The exemption should be available only to records that came into existence less than ten years prior to a request.’

• Information Commissioner John Grace, Toward a Better Law: Ten Years and

Counting, 1994:

‘An amended section [21] should emulate the laws of Ontario and British Columbia. Each has a long list of types of information not covered by the exemption — factual

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material, public opinion polls, statistical surveys, economic forecasts, environmental impact statements and reports of internal task forces.

‘There should also be an attempt to define the term "advice" in the sensible, balanced way currently set out in the Treasury Board policy manual. The exemption should be clearly limited to communications to and from public servants, ministerial staff and ministers. As well, the provision should be made subject to a public interest override.

‘Finally, paragraph 21(1)(d) should be amended. As it now stands, this exemption allows public servants to refuse to disclose plans devised but never approved. As the British Columbia legislation now allows, rejected plans should be as open to public scrutiny as plans which are brought into effect.’

• The Access to Information Act: A Critical Review, by Sysnovators Ltd., 1994:

‘Recommendation 60: That section 21 of the Act be amended to encompass an injury test.

‘Recommendation 61: That section 21 of the Act be clarified as to the type of sensitive decision-making information it covers and include a listing of those type of documents it specifically does not cover.

‘Recommendation 62: That section 21 of the Act be amended to reduce the current time limit on the exemption from 20 to 10 years.

‘Recommendation 63: That section 21 of the Act be amended in order to restrict its application to advice and recommendations exchanged among public servants, ministerial staff and Ministers.

‘Recommendation 64: That section 21 of the Act be amended to add a definition of advice, perhaps the balanced definition currently in the Treasury Board policy manual.

‘Recommendation 65: Section 21 of the Act be incorporated in the public interest override provision.

‘Recommendation 66: That paragraph 21(1)(d) of the Act be amended to exclude rejected plans from the coverage of the exemption.’

• Treasury Board Secretariat, Access to Information: Making it Work for Canadians.

ATIA Review Task Force report, 2002:

‘3-5. The Task Force recommends that: the Act be amended to provide that records “under the control of a government institution” do not include notes prepared by public servants for their own use, and not shared with others or placed on an office file; do include such notes when they are used in an administrative decision-making process that can affect rights, or in a decision-making process reflected directly in government policy, advice or program decisions […..]’

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• Bill C-201, introduced by NDP MP Pat Martin, 2004:

‘16. (1) Paragraphs 21(1)(a) and (b) of the Act are replaced by the following: (a) advice or recommendations developed by or for a government institution or a minister of the Crown other than public opinion surveys, (b) an account of consultations or deliberations involving officers or employees of a government institution

‘(2) Paragraph 21(1)(d) of the Act is replaced by the following: (d) plans relating to the management of personnel or the administration of a government institution that have not yet been put into operation the disclosure of which could reasonably be expected to prejudice the operation of that government institution […]’

Bill C-201 amends (1)(a) to exclude ‘public opinion surveys’ and (1)(b) to ‘officers or employees of a government institution’; amends (1)(d) to insert injury test (s. 16)

• John Reid, former Information Commissioner of Canada, model ATIA bill, 2005

(underlined parts are Mr. Reid’s amendments to the existing Act):

‘17. Section 21 of the Act is replaced by the following:

21. (1) Subject to subsection (2), the head of a government institution may refuse to disclose any record requested under this Act that came into existence less than five years prior to the request if the record contains

(a) advice or recommendations developed by or for a government institution or a minister of the Crown and disclosure of the record could reasonably be expected to be injurious to the internal advice-giving process of the government institution;

(b) an account of consultations or deliberations involving officers or employees of a government institution, a minister of the Crown or the staff of a minister of the Crown and disclosure of the record could reasonably be expected to be injurious to the internal decision-making process of the government; or

(c) positions or plans developed for the purpose of negotiations carried on or to be carried on by or on behalf of the Government of Canada and considerations relating thereto and disclosure of the record could reasonably be expected to be injurious to the conduct of the negotiations.

(2) Subsection (1) does not apply in respect of a record that contains (a) any factual material; (b) the results of a public opinion poll, survey or focus group; […] (n) a decision, including reasons, that is made in the exercise of a discretionary power or an adjudicative function and that affects the rights of the person making the request; or (o) a report or advice prepared by a consultant or an adviser who was not, at the time the report was prepared, an officer or employee of a government institution or a member of the staff of a minister of the Crown.

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(3) For the purpose of this section, "advice" is an opinion, proposal or reasoned analysis offered, implicitly or explicitly, as to action.’

• Justice Department of Canada, A Comprehensive Framework for Access to

Information Reform: A Discussion Paper, 2005:

‘Provision should be narrowed to codify recent case law that states that advice does not include factual information; government is considering amending (1)(d) to provide only a 5 year protection period for plans in respect of which no decision is taken; also consultants’ advice should be included in the exemption (p. 19-20)’

On Section 21(1)(d): ‘According to the Task Force recommendation, the head of a government institution should have the discretion to protect such plans for a reasonable period of time, during which their status may change (e.g. work may cease and recommence a number of times), but that the protection should not exceed five years. The Government is considering an amendment to Section 21 to implement this recommendation.’

• Justice Gomery report, Restoring Accountability, 2006:

Proposes a harms test for ‘the section 21 category of records containing advice or recommendations for a government institution or Minister; there should also be a comprehensive list of the records that must be disclosed.’

• Government of Canada discussion paper, Strengthening the Access to Information

Act, 2006:

‘The proposal to narrow the scope of the section by listing categories of information that would not be protected may be a useful approach to encourage the release of information that is not advice or deliberations. This proposal could help to strike a more appropriate balance between disclosure and the exemption of information that still merits protection.’

• Bill C-556, introduced by Bloc Quebecois MP Carole Lavallée, 2008:

'18. Section 21 of the Act is replaced by the following: 21. (1) Subject to subsection (2), the head of a government institution may refuse to disclose any record requested under this Act that came into existence less than five years prior to the request if the record contains (a) advice or recommendations developed by or for a government institution or a minister of the Crown and disclosure of the record could reasonably be expected to be injurious to the internal advice-giving process of the government institution; (b) an account of consultations or deliberations involving officers or employees of a government institution, a minister of the Crown or the staff of a minister of the Crown

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and disclosure of the record could reasonably be expected to be injurious to the internal decision-making process of the government; or (c) positions or plans developed for the purpose of negotiations carried on or to be carried on by or on behalf of the Government of Canada and considerations relating thereto and disclosure of the record could reasonably be expected to be injurious to the conduct of the negotiations. (2) Subsection (1) does not apply in respect of a record that contains

(a) any factual material; (b) the results of a public opinion poll, survey or focus group; (c) a statistical survey; (d) an appraisal or a report by an appraiser, whether or not the appraiser is an officer or employee of a government institution; (e) an economic forecast; (f) an environmental impact statement or similar information; (g) a final report, final study or final audit on the performance or efficiency of a government institution or on any of its programs or policies; (h) a consumer test report or a report of a test carried out on a product to assess equipment of a government institution; (i) a feasibility or technical study, including a cost estimate, relating to a policy or project of a government institution; (j) a report on the results of field research undertaken before a policy proposal is formulated; (k) a report of a task force, committee, council or similar body that has been established to consider any matter and make reports or recommendations to a government institution; (l) a plan or proposal of a government institution to establish a new program or to change a program, or that relates to the management of personnel or the administration of the institution, if the plan or proposal has been approved or rejected by the head of the institution; (m) information that the head of a government institution has cited publicly as the basis for making a decision or formulating a policy;

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(n) a decision, including reasons, that is made in the exercise of a discretionary power or an adjudicative function and that affects the rights of the person making the request; or (o) a report or advice prepared by a consultant or an adviser who was not, at the time the report was prepared, an officer or employee of a government institution or a member of the staff of a minister of the Crown.

(3) In this section, “advice” means an opinion, proposal or reasoned analysis offered, implicitly or explicitly, as to action.

______________

Canadian provinces Policy advice exemptions in the provinces’ transparency statutes are far from ideal, yet they still far surpass that of the Access to Information Act in their openness. The Quebec FOI law - as a reformed ATIA could do - includes an enlightened feature in one portion of its policy advice exemption, one that acknowledges how publicity can reduce record sensitivity:

38. A public body may refuse to disclose a recommendation or opinion made by an agency under its jurisdiction or made by it to another public body until the final decision on the subject matter of the recommendation or opinion is made public by the authority having jurisdiction. The same applies to a minister regarding a recommendation or opinion made to him by an agency under his authority.

The FOI laws of seven provinces and territories have shorter time limits for withholding records under the policy advice exemption than the 20 years prescribed in the ATIA. The time limit is five years for Nova Scotia; 10 years for Quebec and British Columbia; 15 years for Newfoundland and Labrador, the Yukon, Alberta, and the Northwest Territories; 20 years for Ontario and Prince Edward Island; 25 years for Saskatchewan; and 30 years for Manitoba. The release of factual background papers is a vital exception within policy advice exemptions. The ATIA contains just one general example:

21. (2) Subsection (1) does not apply in respect of a record that contains […] (b) a report prepared by a consultant or an adviser who was not a director, an officer or an employee of a government institution or a member of the staff of a minister of the Crown at the time the report was prepared.

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By contrast, the policy advice exemptions in the FOI laws of British Columbia,191 Yukon, Ontario and Newfoundland each describe more than a dozen types of background factual papers that cannot be withheld - some which go beyond the ‘report’ cited in the ATIA - such as public opinion polls and statistical surveys. This rule applies regardless of who produced the records, i.e., a government employee or other. The FOI laws of Alberta, Saskatchewan, Manitoba, Prince Edward Island and the Northwest Territories each specify between four and seven examples of similar background records. In all provincial FOI laws (except in New Brunswick), as in the ATIA, policy advice exemptions are discretionary. They also lamentably contain no harms tests, but most are covered by general public interest overrides, which the ATIA does not do. An excellent report in 2002 by the Quebec Information Commission advised that each provincial agency head have the duty, before refusing to disclose an opinion or recommendation, to inquire into the prejudice, the real harm that could result from such disclosure. If there is no such harm, it should be disclosed and the Québec Commission recommended that to assist public bodies in doing the job, there be ‘decision help tools’ developed by the counterpart of the federal Chief Information Officer Branch.192 This outlook would be beneficial for the federal ATIA process as well.

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POSTSCRIPT - POLICY ADVICE OPENED UP IN BRITAIN

At least six recent FOI rulings on policy advice in Great Britain, Canada’s parliamentary model, give us examples to consider and follow. The well-reasoned principles expressed in these judgments could help guide the drafters of amendments to the ATIA’s Sec. 21, especially regarding the addition of a mandatory public interest override. Why should Canadians accept any less?

1.) One case involved a request from environmentalists for the submissions which the Export Credits Guarantee Department (ECGD) received from other government departments, about a proposal to extract oil and gas near the island of Sakhalin, north

191 The B.C. Court of Appeal set a dangerous precedent in 2004 when it ruled in the unfortunately influential (in B.C. at least) ‘Dr. Doe’ case, on records held by B.C. College of Physicians and Surgeons. The court held that Sec. 13 of the BC FOI statute was not limited to recommendations; instead, the investigation and gathering of facts could be exempted from access pursuant to that section, regardless of whether or not any decision or course of action was actually recommended. Courts in other provinces later explicitly refuted the ‘Dr. Doe’ ruling, because in the B.C. law, Sec. 13 must not be used to withhold background explanatory papers. The B.C. government urgently needs to improve the wording of this section but has not. 192 Québec Commission d’Accès à l’Information, Reforming Access to Information: Choosing Transparency (2002)

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of Japan. The project is contentious because oil spills could endanger a near-extinct species of whale.

The government argued that the decision-making process itself requires ‘space to think,’ even where the information itself is innocuous. ‘In earlier cases,’ said Britain’s premier FOI advocate Maurice Frankel, ‘it has taken this to absurd lengths arguing for the withholding of even the blandest minutes.’

The Information Tribunal, insisted that the government should show how disclosure of the records involved would harm the public interest. In August 2007 it concluded that disclosure of one of the three submissions would improve, not harm, the quality of decision-making, and that another did little more than ask to be kept informed: ‘there appears to this Tribunal to be a weighty public interest in the need for the public to be acquainted with (the information).’ The government appealed the Tribunal’s ruling to the High Court but lost.

- From Should policy discussions be kept under wraps? by Maurice Frankel, director of the UK Campaign for Freedom of Information. The Independent (London), March 28, 2008 http://www.cfoi.org.uk/sakhalin170308.html

2.) Another case involved a 2004 review of the readiness of the identity-card program's IT system, which the Tribunal also held should be disclosed on public-interest grounds. (The plan had raised fears over rising costs and privacy impacts.) The government argued that doing so would make it impossible for officials to speak frankly to those carrying out such reviews in future. Ironically the 2004 report had questioned whether ‘the current levels of secrecy are necessary.’ In March 2008 the government appealed the ruling to the High Court.

- From Should policy discussions be kept under wraps? by Maurice Frankel, ibid.

3.) Information Commissioner Richard Thomas told the Department for Environment, Food and Rural Affairs in January 2007 to disclose details relating to salmon fishing in a Devon river to help ‘demystify’ the policy-making process. The case arose after the ministry refused to release the advice on the grounds that it constituted internal communications and should, therefore, be withheld regardless of any public interest in disclosure. The commissioner argued that the public interest in disclosure was strong, for it would help inform local people, show how a government decision was reached, and ensure officials were held accountable. FOI experts said the decision might have a wider significance in the context of similar cases ongoing; lawyer Michael Smyth said overcoming government resistance to publishing internal policy advice seemed a ‘bit like securing the holy grail.’

- From Department ordered to disclose confidential advice to minister, by Michael Peel. Financial Times (London), Jan. 6, 2007.

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4.) In January 2006, Information Commissioner Richard Thomas ordered the Department for Education and Skills to comply with a request to disclose minutes of senior management meetings regarding the setting of school budgets because the information is in the public interest. ‘This indicates that I am prepared to take a tough line if I have to,’ he said. The department refused the request for the minutes - recorded at a time when there was a perceived crisis in school funding - on the grounds that it would inhibit candour at private meetings and that the names of individual civil servants should be exempt from disclosure. Mr. Thomas agreed that some of the information should remain exempt on policy development grounds, but not all, and that each case would be judged on its own merits.

Government had tried to censor an innocuous extract (on ’policy formation’ grounds) that read: ‘The group discussed the latest situation on school budgets and funding.’ It argued, unsuccessfully, that the names of senior officials who made such remarks should also be withheld, for fear they would no longer be willing to speak out.

- From Budgets ruling strikes blow for disclosure, by Bob Sherwood. Financial Times (London), Jan. 13, 2006

5.) In March 2007, Information Commissioner Richard Thomas ordered the Treasury to release documents related to its budgeting. In his judgment he recognised the budget process could involve ‘difficult and controversial policy considerations’ where the need to maintain ‘the confidentiality of candid debate’ could outweigh the public interest in disclosure. But he ruled for publication because of the amount of time that had elapsed since the discussions, the effect of the pension changes on official revenues, and the public interest in the transparency of decision-making.

- From Publication rules need rethinking, says ex-chancellor, by Ben Hall and Michael Peel. Financial Times (London), April 3, 2007

6.) Information Commissioner Richard Thomas ordered the Foreign and Common- wealth Office (FCO) in February 2008 to release the first draft of a controversial, now discredited Iraq weapons dossier. The FCO had argued unsuccessfully that the document was exempt under section 36 of the FOI law, that is, ‘prejudice to effective conduct of public affairs.’

The Guardian also reports that officials have also fought repeated campaigns to suppress frank comments handwritten on drafts, to try to protect the principle that only formal, sanitized minutes and memos should ever be made public.

- From Freedom of information law tested over Iraq papers: Censorship often hides obscure, harmless facts, by David Leigh. The Guardian (London), Feb. 21, 2008

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AUSTRALIAN COURT ORDERS POLICY RECORDS RELEASED

1.) In a landmark decision in April 2006, the highest court in New South Wales threw out arguments used for two decades by federal and state government agencies to keep secret thousands of their documents. The unanimous judgment of the Court of Appeal imposed tough new tests for governments that want to refuse to release documents by claiming they are ‘internal working documents’ in which there is no legitimate public interest.

The decision, certain to have ramifications throughout Australia, said many documents rightly regarded as confidential internal working documents when created, must become available for release as their significance wanes over time.

The ruling went against WorkCover, which had appealed a decision by the Administrative Decisions Tribunal to grant the NSW Law Society access to five documents prepared for WorkCover by legal costs consultant Michelle Castle.

It also means government agencies will have to show ‘tangible harm’ would flow from disclosing the documents rather than relying on theoretical arguments known as the ‘Howard Factors’ formulated in a 1985 FOI case which John Howard lost against the then-treasurer Paul Keating. FOI expert Rick Snell said the 2006 decision was a landmark because it scrapped ‘stupid arguments about theoretical possibilities.’

Australia’s FOI laws have been widely criticised because of the ease with which policy exemption clauses are used to refuse access. But the judgment, written by Justice Ruth McColl, said time had moved on: ‘Freedom of information legislation … was intended to cast aside the era of closed government and principles developed in that era may, with the benefit of 20 or more years of experience, be seen as anachronisms.’

- From Judges open access to sensitive documents, by Matthew Moore, FOI Editor, The Sydney Morning Herald, April 29, 2006 http://www.smh.com.au/news/national/judges-open-access-to-sensitive-documents/2006/04/28/1146198353373.html

2.) Channel 7 reporter and FOI Editor Michael McKinnon lost his case in Australia’s Administrative Appeals Tribunal, ending his effort to get the advice the government had when it was drafting the Work Choices law. Yet there were some important victories in the fine print. The government won because the tribunal upheld one argument against release, but most of the other arguments were demolished by the deputy president, Stephanie Forgie. ‘This decision blows away arguments used for decades to hide options papers prepared for all big policy decisions,’ said one newspaper.

The Government used arguments known as the Howard factors (see case above). Briefly, those factors say that if senior public servants knew their advice or discussion papers might be released, they might not write things down, and they might not give frank, honest, comprehensive, accurate and timely advice to their ministers. Departmental advisers could be left out of the policy loop altogether. The higher up the echelons you go, the more sensitive the advice. What Ms Forgie has said is: prove it.

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It is no longer enough for public servants to state this is their belief about how others would behave if documents were released. Ms. Forgie rejected government claims that advisers would simply be cut out of the loop when policy is prepared. This decision says that if governments want to make these claims, then they will have to get senior bureaucrats and ministers to give sworn evidence.

McKinnon lost only because his documents were the subject of the chokingly restrictive conclusive certificates that stop the tribunal considering the merits of release. That might now change. Australia’s prime minister Kevin Rudd has promised to abolish conclusive certificates.

- From Government's arguments denied: What they won't tell you, by Matthew Moore, FOI Editor. Sydney Morning Herald, November 23, 2007 http://blogs.smh.com.au/newsblog/archives/2007/11/

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Chapter 8 ~ Above the Law

Cabinet Records

Should there remain a complete exclusion

for cabinet confidences in the Access to Information Act?

Perhaps as a consequence of the power it wields, the documents of a cabinet or a governing council are often the most important, the most controversial, the most sensitive, and the most sought after type of records in any freedom of information system. For centuries, cabinet secrecy in Commonwealth nations has imposed a unique internal dynamic, one either defended as indispensable to the public interest, or deplored as needless and self-serving. Unlike exemptions for other record types, most cabinet documents are excluded from the scope of Canada’s Access to Information Act entirely. The effect of excluding these, rather than just granting them a mandatory exemption, is to cut the applicant off from procedural remedies such as appealing to the information commissioner or the Federal Court, for neither is allowed to even view cabinet records. One could say that in the ATIA, cabinet is shielded by a distinct ‘law within the law,’ acting almost as a law unto itself, and we must recall that this troubling situation was not the original intent of parliament. In Canada, as in other parliamentary governments, even parliament and the government caucus are kept in the dark, for ministers are sworn to secrecy upon joining cabinet.193 Yet entrusting the public with some modest insight into the highest council could potentially engender more trust and reduce political alienation. As well, the cabinet realm is one area where the consequences of poor analysis and factually incorrect background papers are most perilous, and where the analytic ability of outside experts is most badly needed. (The same argument could be made about the cross-government ATIA policy advice exemption.)194 Anyone can err, and an insular

193 In Canada, even cabinet’s procedures were shielded from the public. Prof. Roberts relates that his first ATIA request, in 1989, for the instruction manual for new cabinet ministers, was rejected in full. – Alasdair Roberts, Blacked Out: Government Secrecy in the Information Age. New York: Cambridge University Press, 2006 (Years later, the government posted this record online.) 194 One Australian newspaper stated why there seemed no need to deny FOI requests on a government plan for fuel management: ‘Under the laws and culture now operating, you can bet all would be found exempt - "documents prepared for cabinet" would be the main ground. . . . Releasing such documents is supposed to promote informed debate about the quality of advice to government, not just about whether a decision the government takes is the right one. Once the FuelWatch scheme is approved, it is hard to see what damage would possibly result from revealing advice that showed a variety of views about it and possible alternatives.’ - Fuel for fans of keeping it all secret, by Matthew Moore. Sydney Morning Herald, May 31, 2008

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‘groupthink’ policy enclosure in cabinet can lead to grievous mistakes that even a small degree of external scrutiny and feedback might have averted. A fair amount of existing cabinet confidentiality is necessary and justifiable, but exactly how much?

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The more enlightened earlier drafts of the ATIA are still very relevant, and legislators would ideally adopt the better parts of these when reforming the Act today. The original federal Freedom of Information Act, Bill C-15, drafted during the short-lived Progressive Conservative government of Joe Clark (1979), had included a mandatory exemption for cabinet confidences, which allowed for release of background information, analyses of problems or policy options submitted or prepared for submission by a minister of the crown to council for its consideration after a decision had been made by cabinet with regards to a particular matter if no other exemption applied. This was as open as the federal drafting ever was to be.195 (The provinces chose a mandatory exemption for their FOI laws.) The Trudeau Liberal version of the Access to Information Act, Bill C-45, eliminated this provision and established a broad, class-based mandatory exemption (with no injury test) for records, including discussion papers presenting background explanation,196 which could all be withheld for 20 years. Sharp criticism during hearings of the Standing Committee on Justice and Solicitor General on Bill C-45 led the government to adopt an amendment relating to discussion papers. This resulted in the current ATIA paragraph 69(3)(b) which provides that the exclusion does not apply to:

. . . discussion papers described in paragraph (1)(b) (i) if the decisions to which the discussion papers relate have been made public; or (ii) where the decisions have not been made public, if four years have passed since the decisions were made.

195 The Access to Information Act and Cabinet confidences: a discussion of new approaches. A study prepared by RPG Information Services Inc. for the Information Commissioner of Canada. Ottawa, 1996 http://www.infocom.gc.ca/publications/pdf_en/CABCONF.PDF 196 Government once endorsed publicity for such records, and ideally would again. ‘A special rule applies to cabinet discussion papers. These date from 1977. The original intention was to provide information to the public about alternatives the government was considering. Some helpful discussion papers were released in the later 1970s, but since then the idea of public consultation about alternatives has fallen out of favour.’ - Heather Mitchell and Murray Rankin, Using the Access to Information Act. Vancouver: International Self-Counsel Press, Ltd., 1984

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As the ATIA was being prepared for passage, on May 1, 1982, Prime Minister Trudeau expressed new reservations about the effect of the bill on the secrecy of cabinet minutes, due to recent court decisions. That month several FOI lobby groups held a press conference to urge the government to get the Bill back on track. That day, all three parties agreed to pass the Bill by the end of June by limiting all stages of debate to one day. On May 20, 1982 - at the eleventh hour, as the parliamentary session was closing – a nervous Liberal cabinet approved a new version of C-43, with the major amendment that documents of cabinet and its committees would not be covered and the court review power would not extend to these papers. Francis Fox, the minister responsible for shepherding the Act through parliament, stated specifically that the purpose of excluding cabinet records was to prevent the federal court from reviewing the accessibility of such information. As two legal commentators noted, this reasoning is ‘extraordinary’ because the federal court can, during its hearings of civil lawsuits, review cabinet records or even more sensitive information such as military secrets, for the latter are exempted and not excluded from the ATIA.197 The commissioner’s only check on excessive use of the cabinet confidence exclusion is to seek a certificate from the Clerk of the Privy Council that the record or a specific part is indeed a cabinet confidence. This exclusion was the price parliament had to pay for the passage of the rest of the ATIA in 1982. (Historians could debate whether it was better to have paid this price rather than to have no ATIA at all; I would reluctantly say that it was.) The opposition parties gave cautious approval, and the ATIA was passed and came into force the next year.198 However, the conversion of the exemption into an exclusion ‘served as a lightening rod for criticism which brought the legislation into some disrepute even before it was proclaimed in July 1983.’ Dubbed the “Mack Truck” clause by the opposition and media (i.e., the exclusion was so large a hole that that a Mack truck could supposedly be driven through it), it was invoked as proof that Liberals had really brought forth a secrecy law.199 Since then, the need for reform on the cabinet records exclusion has been repeated Sisyphean-style for more than two decades (as can be read in the ‘Canadian Commentary’ texts below). The pleas might as well have been addressed to a marble wall, and no progressive amendments have appeared in the ATIA cabinet records section since

197 Mitchell and Rankin, ibid 198 Treasury Board Secretariat and Justice Department of Canada, Access to Information: Making it Work for Canadians; Report of the Access to Information Review Task Force. Ottawa, 2002 http://www.atirtf-geai.gc.ca/report2002-e.html Appended with 29 research reports. 199 RPG Information Services, op.cit.

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the Act’s passage. In fact, we may be dispirited again but not surprised if this problem remains perfectly static for decades to come. For example, just three years after ATIA came into force its operation was reviewed by a the Standing Committee on Justice and Solicitor General, which heard more testimony on the need to reform this provision than on any other issue. Its final report quoted Justice Minister John Crosbie, who said that:

‘. . . I think that in the past too much information was said to be covered by the principle of Cabinet confidence . . . . A lot of information previously classified as Cabinet confidence can and should be made available.’200

Twelve years ago, RPG Information Services Inc. produced a report on cabinet records for the federal information commissioner and averred that

There are troubling gaps in the coverage of the Access to Information Act. In fact, in terms of the comprehensiveness of its coverage, the Access to Information Act is very much behind the times. This report examines what is arguably the major gap in the law's coverage - Cabinet confidences…. Since section 69 is no longer an accurate representation of the Cabinet Papers System, amendments to this section are likely. This study concludes that the approach of excluding Cabinet confidences, which was criticized in 1982 and demonstrated not to be the direction that other jurisdictions were adopting in 1986-87, appears absolutely shop worn in 1996.201

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As if all this was not enough, even the ATIA applicants’ limited right to cabinet background papers has been violated in practices too numerous to detail here. The most deleterious is the practice of mislabeling cabinet records to avert their release under the ATIA, a good illustration of how government can breach the spirit of a law by harrowing the letter of it. (Combating such mislabeling seems the toughest ATIA legal nut to crack; court rulings on these disputes are described with alarming frequency in the Commissioner’s various annual reports.) As two commentators have noted, ‘Unfortunately, many documents labeled “discussion paper” are not cabinet discussion papers and therefore will not lose their excluded status,’ and ‘the section excluding cabinet records can be abused if, for example, senior officials

200 Standing Committee on Justice and Solicitor General on the Review of the Access to Information Act and the Privacy Act, report, Open and Shut: Enhancing the Right to Know and the Right to Privacy. Ottawa: Queen’s Printer of Canada, 1987

201 RPG Information Services, op.cit.

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launder politically sensitive non-cabinet records through the exclusion by labeling them “cabinet proposal.”’202 An amendment to the ATIA should remove all potential uncertainties in the wording around cabinet documents, making it clear that they are defined solely by their substance, not by their titles. Before assuming power, the Conservatives had promised to keep ministers and their offices covered by the Act, yet after 2006 reversed their stance. In June 2008, the Federal Court ruled that some records created by ministers' aides are essentially not covered by the ATIA if they are in the possession of the office of the Prime Minister or cabinet ministers. Mr. Justice Michael Kelen wrote that if Parliament wishes such documents to be included under the ATIA, it must amend the Act itself. The information commissioner (to his credit) has appealed the ruling to a higher court. Judge Kelen still ordered the release of some censored copies of Mr. Chrétien's agendas held by the Privy Council Office - the government department that reports to the prime minister - or by the RCMP, but not those controlled by the PMO itself. NDP MP Pat Martin said the ruling will give government incentive to simply hide controversial documents in ministers' offices: ‘This is a terrible setback for openness and transparency. It gives them a place to squirrel away any number of things.’203 An amendment to the Act should make it unmistakably clear that the Prime Minister’s Office and minister’s offices are bodies covered by the ATIA’s scope. Access to PMO records is more important than ever, as power becomes more concentrated there, for as Jeffrey Simpson observed in his book notably titled The Friendly Dictatorship: ‘Canada’s prime minister exerts more direct, unchecked power than the leader of any other parliamentary democracy.’204

______________ Historically, it would be difficult to establish where or when the first justifications for privacy of the governing inner circle were articulated. In Imperial Rome, for example, secrecy was seen as essential to stable government, when at the time (as sometimes now) stability was valued over democracy. The arcana imperii, or ‘secrets of imperial policy,’ were not shared with the elected senate because public knowledge of the emperor's plans

202 Mitchell and Rankin, op.cit. 203 Ministers' offices not subject to access law, court rules, by Campbell Clark. The Globe and Mail, June 20, 2008 204 Jeffrey Simpson, The Friendly Dictatorship. Toronto: McClelland and Stewart, 2001

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might make them impossible to carry out. Such rationales and others have been cited since then around the world into the 21st century.205 Why, then, do we need the exclusion, per se, at all? Why not withhold records of cabinet discussions under a mandatory FOI exemption, which other nations do in their FOI laws? In this country, a Treasury Board policy of 1993 provided this explanation for excluding cabinet records from the Act’s coverage:

The Canadian government is based on a Cabinet system. Thus, responsibility rests not in a single individual, but on a committee of ministers sitting in Cabinet. As a result, the collective decision-making process has traditionally been protected by the rule of confidentiality. This rule protects the principle of the collective responsibility of ministers by enabling them to support government decisions, whatever their personal views. The rule also enables ministers to engage in full and frank discussions necessary for effective functioning of a Cabinet system of government.206

This rationale is quite similar to those in other reports that have examined the issue,207 and all articulate three basic justifications to shield cabinet records from publicity: • Candid advice from officials: Related to the first justification is the need for ministers to receive frank advice from their officials. Many assert that is more likely to occur if advice to ministers is provided in confidence. (Others object that this protection could instead mainly be provided by the ATIA exemption on policy advice, Sec. 21.) • Cabinet's agenda: The reports conclude that cabinet's agenda should be confidential. This will allow cabinet to set its own agenda and carry on discussion without undue political pressures being brought to bear. This type of privacy helps ensure that cabinet decision-making processes are conducted as promptly as possible.

205 In the early 1970s, Prime Minister Trudeau experimented with the practice of allowing his ministers to disagree publicly over policy options in advance of government stating its official position, although not afterwards. (Robert F. Adie and Paul G. Thomas, Canadian Public Administration: Problematical Perspectives. Scarborough: Prentice-Hall, 1987) Some transparency advocates might be nostalgic for that practice, and ask ‘Why not again?’ Yet cabinet accountability can take several forms: Last year, for instance, Australian Prime Minister Kevin Rudd pledged that cabinet would travel the country on a monthly basis to listen to the people, and the press would be briefed on the proceedings of cabinet. British Columbia premier Gordon Campbell ‘staged’ (the apt term indeed) several televised ‘open cabinet meetings.’ 206 Treasury Board Secretariat, Access to Information Act: Policies and Guidelines, (Ottawa, 1993), Confidences of the Queen's Privy Council for Canada. 207 Such as the 1987 Open and Shut report, and the Province of Ontario’s Report of the Royal Commission on Freedom of Information and Protection of Privacy, 1980 (the ‘Williams Report’)

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• Collective ministerial responsibility: This convention requires that each cabinet member be accountable for government policy. Thus, at the cabinet table, each minister should be free to exchange frank and vigorous views with his or her colleagues and to have those views protected from outside scrutiny. Cabinet generally wishes to show a unanimous front to the public.208 The wish to present a face of cabinet solidarity is reflected in the minutes of a cabinet meeting of January 10, 1986 (which I obtained by the ATIA): ‘The Prime Minister emphasized the need for cabinet to bring its collective creativity and energies to bear on problems in order to broaden the focus and move away from traditional single-portfolio solutions to cooperative ones. It was critical to think like a government, not just from a ministerial perspective. Ministers were not chosen to simply act as megaphones for their departments.’

______________ Beyond its own function, the ATIA exclusion on cabinet confidences has a broader negative influence than is commonly realized. It sends a chilling message, or more precisely a tone, to the entire public service. For one reason, records prepared by others, such as ministry employees, for cabinet consideration are excluded from the ATIA’s scope, even if they were not actually presented to cabinet in the end.209

Secrecy is part of the structure of governments, said current information commissioner Robert Marleau, particularly those modeled on the parliament of Great Britain. ‘It starts with cabinet secrecy and flows from there. So anybody who supports the executive - that is, most of the public servants supporting ministers - are cautious about either inadvertently or expressly revealing cabinet confidences.’210

Yet as I read cabinet meeting minutes of the 1980s that I had obtained through the ATIA (for under the Act they may only be seen after 20 years have passed), records of many of the discussions appeared so familiar and innocuous – even when I recalled the historical

208 The 141 recommendations from David Solomon - a lawyer, journalist and political scientist - have delivered the revolution in FOI law that Queensland (Australia) Premier Anna Bligh, asked for during her first days in office. One of Dr. Solomon’s recommendations was to scrap the automatic exemption for cabinet documents; instead they would be exempt only if their release would adversely affect the principle of collective ministerial responsibility. - The way to free up FoI. Editorial. Sydney Morning Herald (Australia), June 12, 2008

209 In Australia, political commentator Dean Jaensch pointed to the ‘cunning' use of the Cabinet exemption clause, where a document is not released if it is taken into the Cabinet room. The Advertiser newspaper had several FOI applications refused last year because documents were `prepared for submission to Cabinet (whether or not it has been so submitted)'. - Public's right to know is kept in the dark, by Michael Owen. The Advertiser (Australia), July 22, 2008 210 How secrecy became part of the bureaucracy, by Tony Atherton. Calgary Herald. Sept. 23, 2007

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context - that I tried unsuccessfully to conceive of what actual harms could have resulted from most of these being published much sooner afterwards than 20 years.211 Diplomats engaged in negotiations have historically warned against the ‘vice of publicity,’ which might lead to delegates’ posing and grandstanding for their home constituencies, and have insisted that ‘we should not allow the public to be backseat drivers.’ This same general caution is invoked regarding cabinet discussions. But does the public not have the ultimate right to know to where it is being driven? The ATIA policy advice exemption and the cabinet records exclusion seem the equivalents of a bus driver blindfolding his paying passengers, and telling them, ‘It is none of your business to where I am driving you, or by what road, until after we arrive. But it is all for your benefit. Just trust me.’ From the hardening power of tradition, it is as though the rationale for Canadian cabinet secrecy has come to assume the status of a law of nature, its value so self evident as to require no original explanation in any new century. Yet when the highest level of power is wedded to the highest level of confidentiality, the two factors irresistible and mutually reinforcing, any corporate entity over time could too easily and dangerously come to mistake the means for the ends, and misunderstand the real public interest. In sum, we should end the cabinet records exclusion in the ATIA, and adopt the freer New Zealand model. Precedents may be binding for legal questions, but for some political traditions one can wonder if there is any more valid reason to permit the past to bind the present than it is for the dead to bind the living.

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• Canada’s Access to Information Act, 1982:

Under Sec. 69 (1), the ATI Act does not apply to memoranda on proposals or recommendations to cabinet; discussion papers of background explanations, analyses of problems or policy options for cabinet; cabinet agenda or records recording its deliberations or decisions; draft legislation. (2) Subsection (1) does not apply to records that were created more than 20 years previously; or discussion papers if the decision to which they relate was made public; or, where the decisions have not been made public, if four years have passed since the decisions were made.

211 For example, I found that 1987 records of cabinet meetings regarding the death penalty contained very little that was not widely known and discussed at the time. - How Mulroney buried the move to reinstate capital punishment, by Stanley Tromp. The Globe and Mail (Toronto), October 13, 2007

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Global Commentary

• Commonwealth Secretariat, Model Freedom of Information Bill, 2002:

‘25. (1) A document is an exempt document if it is (a) a document that has been submitted to the Cabinet for its consideration or is proposed by a Minister of Government to be so submitted, being a document that was brought into existence for the purpose of submission for consideration by the Cabinet; (b) an official record of any deliberation or decision of the Cabinet; (c) a document that is a draft of copy of, or of a part of, or contains an extract from, a document referred to in paragraph (a) or (b); or (d) a document the disclosure of which would involve the disclosure of any deliberation or decision of the Cabinet, other than a document by which a decision of the Cabinet was officially published. (2) Subsection (1) does not apply to a document that contains purely statistical, technical or scientific material unless the disclosure of the document would involve the disclosure of any deliberation or decision of Cabinet.’ [Sec.3 and 4 refer to certificates that assert the records are truly cabinet records] • Commonwealth Human Rights Initiative, analysis of St. Kitts and Nevis Freedom

of Information Bill 2006212

:

‘Section 33(2) which attempts to exempt Cabinet documents should be deleted because Cabinet documents can be protected under other exemptions clauses as necessary, for example, national security or management of the national economy. ‘At the very least, all of the Cabinet exemptions need to be reviewed to ensure that they are very tightly drafted and cannot be abused. Currently, the provisions are extremely broadly drafted, with section 33(2)(b) protecting even documents simply prepared for the purpose of submission to Cabinet or which was considered by Cabinet and which is related to issues that are or have been before Cabinet. Practically every government document could be said to be related to issues that have been before Cabinet at some time or the other!

212 St. Kitts and Nevis Freedom of Information Bill 2006, analysis by Cecelia Burgman, Commonwealth Human Rights Initiative, 2007 http://www.humanrightsinitiative.org/programs/ai/rti/international/laws_papers/kitts_nevis/st_christopher_nevis_foi_bill_2006.pdf

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‘It is also not clear why section 20(2)(a) protects official records of the Cabinet. These records are presumably vetted by Cabinet before they are finalized, and if Cabinet members sign off on them as a legitimate record of discussions then why should they be worried about their release? ‘It is notable that some MPs in some other jurisdictions have complained that broad Cabinet exemptions have been abused because Cabinet members simply take documents into Cabinet and then out again and claim an exemption. ‘At the very least therefore, a provision should be added that all decisions of the Cabinet along with the reasons thereof, and the materials on which the decisions were taken shall be made public after the decisions have been taken and the matter is complete. Section 8(1)(i) of the Indian Right to Information Act 2005 provides a good example of such a clause.’

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Other nations Although strong cabinet secrecy is a tradition in Commonwealth counties, a complete exclusion from the law’s scope for records of ‘cabinet’ or a governing ‘council’ occurs only in Canada and South Africa, a fact that Canadians should seriously consider when reforming the ATIA. Of 68 national FOI statutes, I counted just 17 with a cabinet records exemption. These are found in ten Commonwealth nations: Australia, Belize, India, Jamaica, New Zealand, Scotland, St. Vincent and the Grenadines, Trinidad and Tobago, Uganda and Zimbabwe. The exemptions in these ten statutes are all mandatory; six have time limits, five have public interest overrides, and five allow for the release of background papers. There are also cabinet records exemptions in the Commonwealth draft FOI bills of Bangladesh, the Cook Islands, Fiji, Ghana, Guyana, Maldives, Sri Lanka, St. Kitts and Nevis, and Tanzania. The best Commonwealth example for a reformed ATIA to follow is that of India, where:

8(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen [….] (i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed.

The Indian cabinet records may also be released ‘if public interest in disclosure outweighs the harm to the protected interests.’

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• This model is ideal for Canada: In New Zealand, ‘the Official Information Act 1982 does not contain any blanket exemptions for Cabinet confidences. Ministers are also encouraged to proactively release Cabinet material, which is most often published on the Internet.’ In practice it is common for cabinet documents and advice to be released. As noted by a previous Secretary of the Cabinet, ‘virtually all written work in the government these days is prepared on the assumption that it will be made public in time.’213 These recommendations apply to the proactive release of Cabinet materials:

a. Only Ministers may approve the proactive release of Cabinet material (they may wish to first discuss the proposed release with Cabinet colleagues). b. The person administering the release of the material should: • assess the information in light of the principles in the Official Information Act 1982, the Privacy Act 1993, and the Security in the Government Sector manual; and • consider deleting any information that would have been withheld if the information had been requested under the Official Information Act 1982.

c. Where appropriate, papers and relevant minutes should be published together so that readers have the background to the decisions made by Cabinet. […]214

• In the FOI statute of the United Kingdom, policy advice and cabinet confidences appear in sections 35 and 36. There is a discretionary exemption for cabinet deliberations (which the British call ‘ministerial communications’), but once a decision has been made, ‘any statistical information used to provide an informed background to the taking of the decision’ is not exempt. In Sec. 36, prejudice to effective conduct of public affairs, there is a harms test.

36. […] (2) Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act (a) would, or would be likely to, prejudice (i) the maintenance of the convention of the collective responsibility of Ministers of the Crown [….]

• Australia was the only parliamentary democracy that was working towards FOI legislation at the same time as Canada. Yet while this nation chose to exclude cabinet records, Australia in 1982 chose a mandatory exemption.215 213 http://www.freedominfo.org/countries/new_zealand.htm 214 Department of the Prime Minister and Cabinet, Cabinet Manual 2008 (Wellington, New Zealand: Cabinet Office, 2008) http://www.cabinetmanual.cabinetoffice.govt.nz/files/manual.pdf 215 The RPG report notes that this choice arose from a somewhat different political context: ‘It is important to note at the outset, however, that though the Westminster tradition of Cabinet solidarity forms part of Australian political theory, it is perhaps less strong than in Canada. Cabinet ministers in Australia take an oath of secrecy and decisions in Cabinet are arrived at

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The exemption decisions may be reviewed by the Administrative Appeals Tribunal; but cabinet notebooks are excluded by definition from the operation of the act.216 In Australia, there is some discretion for individual ministers and departments to decide whether or not to release draft cabinet submissions and briefing materials for use by ministers in cabinet. If the agency is able to delete the cabinet references in a document, access must be granted to the remainder of the record (unless that remainder itself is exempt under another section of the law). Internal working documents are not automatically exempt under Sec. 36; to justify withholding these, the agency must consider if release would be contrary to the public interest and explain why. Background factual papers may be released. In Canada, the information commissioner’s only check on the overuse of the cabinet confidence exclusions is to seek a certificate from the Clerk of the Privy Council that the record or a specific part is in fact a cabinet confidence. Australia has a similar process, but in that nation, such certificates can be reviewed by an independent authority. The state of Queensland's integrity chief says a public interest test should be undertaken before ministers are allowed to hide documents beneath Cabinet's veil of secrecy. In a submission to an independent review of FOI laws, Gary Crooke, QC, has argued the often-abused Cabinet measure needed significant change.

Under current Queensland laws, ministers and their department are allowed to hide documents from public scrutiny for 30 years if they were related to a Cabinet discussion; the measure was streamlined so documents no longer even have to be taken to Cabinet to attract the protection. However, Mr Crooke said, ‘Any category of exemption should be required to pass the public interest test before exclusion is justified.'217

• Records of cabinet deliberations can only be withheld for 10 years in the draft FOI bills of Guyana and Trinidad. through consensus not by vote, thus avoiding many splits in the ranks. But ministers have often quoted from the Cabinet documents of predecessor governments and the Cabinet room can leak profusely. Thus a freer system than strict Cabinet solidarity seems to be the rule in Australia.’ - RPG Information Services, op. cit 216 In Australia, ‘cabinet notebooks’ are excluded from the definition of documents provided in the Act, and therefore are excluded from its operation. ‘Cabinet notebook’ is defined under the Australian FOI Act as a notebook or other like record that contains notes of discussions or deliberations taking place in a meeting of the cabinet, being notes made in the course of those discussions or deliberations by, or under the authority of, the Secretary to the Cabinet. - Douglas, Kristen, Access to Information Legislation in Canada and Four Other Countries. Ottawa: Library of Parliament, Parliamentary Information and Research Service, Law and Government Division, 2006 http://www.parl.gc.ca/information/library/PRBpubs/prb0608-e.htm 217 Integrity chief urges test to cover Cabinet papers, by Steven Wardill. The Courier Mail (Australia), March 18, 2008

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• Scotland’s FOI law expresses similar concepts on cabinet solidarity as the ATIA rationale, and yet unlike the ATIA it contains a harms test.

30. Information is exempt information if its disclosure under this Act […] (b) would, or would be likely to, inhibit substantially (i) the free and frank provision of advice; or (ii) the free and frank exchange of views for the purposes of deliberation; or (c) would otherwise prejudice substantially, or be likely to prejudice substantially, the effective conduct of public affairs.

Amongst non-Commonwealth nations, I found just six with FOI statutory exemptions that permit agencies to withhold cabinet records: Greece, Norway, Panama, Denmark, Ireland, and the United States.218 Of these, the first three exemptions are discretionary, the others mandatory. Three of these six allow for the release of factual papers, and in Panama, cabinet records can only be withheld for 10 years. Amongst the draft FOI bills, I could not find one non-Commonwealth nation with a cabinet records exemption, which is not surprising from the newer generation of more open FOI laws. In Thailand’s FOI law, Sec. 7 (4), the state must publish ‘resolutions of the Council of Ministers’ in the Government Gazette. It is also interesting to note that although South Korea’s FOI statute does not mention cabinet records per se, the government has resolved to release many of these proactively.219 Again, I am not calling for an end to all cabinet record confidentiality in the ATIA; still, if Canadian officials still assert that a entire exclusion for cabinet records in the Sec. 69 is indispensable to the nation’s wellbeing, they might reflect upon the examples of roughly

218 In some way, the American’s cabinet records exemption could be called an exclusion: The U.S. Justice department advises that the FOIA does not apply to the President, to his immediate staff, or to his advisors (sometimes collectively known as the ‘inner White House’ for FOIA purposes) – a flaw that mars what is otherwise one of the world’s better FOI statutes. http://freedominfo.org/countries/united_states.htm 219 Government to Release Portions of Cabinet Meetings, April 3, 2003: ‘The Seoul Yonha, a Semi-official news agency in the Republic of Korea, reports that the Government Administration and Home Affairs Ministry will begin to make sections of the minutes of Cabinet meetings available to the public. Kim Doo-kwan, the Home Affairs Minister, said in 2003 that ‘the general trend will be to move toward giving the public more access to information on the details of Cabinet meetings.’ http://freedominfo.org/countries/south_korea.htm

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50 national governments that have no explicit exemption for cabinet records in their FOI laws at all and yet appear to be somehow functioning nonetheless, as far as I know. 220

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Canadian commentary

• Open and Shut, report by MPs’ committee on Enhancing the Right to Know, 1987:

‘3.22. The Committee recommends that the exclusion of Cabinet records found in section 69 of the Access to Information Act and section 70 of the Privacy Act be deleted. In its place, an ordinary exemption for Cabinet records should be added to the Access to Information Act and the Privacy Act. No injury test should be included in this exemption.

‘3.23. That section 69(1)(a) [Cabinet memoranda], section 69(l)(b) [discussion papers] and section 69(1)(e) [Ministerial briefing notes], as well as section 69(3)(b) of the Access to Information Act [section 70(1)(a), (b) and (e) and section 70(3)(b) of the Privacy Act] be deleted. The amended exemption for Cabinet confidences should be drafted in the following terms:

(1) The head of a government institution may refuse to disclose a record requested under this Act where the disclosure would reveal the substance of deliberations of the Queen’s Privy Council for Canada, contained within the following classes of records: (a) agenda of Council or records recording deliberations or decisions of Council; (b) a record used for or reflecting consultation among Ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy; (c) draft legislation or regulations; (d) records that contain information about the contents of any records within a class of records referred to in paragraph (a) to (c).

(2) For the purposes of subsection (1) “Council” means the Queen’s Privy Council for Canada, committees thereof, Cabinet and committees of Cabinet.

‘3.24. That the twenty-year exemption status for Cabinet confidences be reduced to fifteen years.

‘3.25. That the Access to Information Act and the Privacy Act be amended to contain a specific framework for the review of Cabinet records….’

220 This is hardly a singular viewpoint, even in the Commonwealth. One Australian newspaper editor opined that ‘The notion that every document prepared for cabinet needs to be exempt is ridiculous. Freedom-of-information laws in New Zealand allow cabinet documents to be routinely made public and no one suggests that that is harming the country.’ - The law needs fixing, and so does the culture, by Matthew Moore, Herald Freedom-of-Information Editor. Sydney Morning Herald, Australia, Nov. 30, 2007 (Mr. Moore’s role and title, incidentally, would be a welcome addition to any Canadian newspaper.)

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• Information Commissioner John Grace, Toward a Better Law: Ten Years and

Counting, 1994:

‘Perhaps no single provision brings the Access to Information Act into greater disrepute than section 69…. Building on the [1987] committee deliberations, the following recommendations are offered: - Section 69 of the Act should be amended to convert it into an exemption; - The current 20-year period during which Cabinet documents are excluded from the Act should be changed to 15 years; - Paragraph 69(3) should be redrafted to cover analysis portions of Memorandum to Cabinet now made available to the Auditor General. These should be released if a decision has been made public, the decision has been implemented, or five years have passed since the decision was made or considered; - Appeals of decisions under the Cabinet records exemption should be heard by the Associate Chief Justice of the Federal Court after review by the Information Commissioner.’

• Open Government Canada (OGC), From Secrecy to Openness, 2001:

‘Recommendation 8: The section 69 exclusion that prevents the release of Cabinet confidences for 20 years should be changed to an exemption, as in Ontario, that applies only to defined records that “reveal the substance of deliberations of Cabinet” and ensures all other Cabinet-related records (including many records currently withheld under the section 21 (advice and recommendations) exemption) are explicitly subject to the right of access. ‘Recommendation 9: The time period during which Cabinet confidences cannot be disclosed should be reduced from 20 years to 15 years, as in B.C. and Alberta, or even further to 10 years, as in Nova Scotia.’

• A Call for Openness, report by MPs’ Committee on Access to Information, chaired

by MP John Bryden, 2001:

‘6. We recommend that section 69 of the Access to Information Act excluding Cabinet records from its ambit be repealed. This exclusion should be replaced by an injury-based discretionary exemption to protect the confidentiality of Cabinet deliberations. Recourse to this exemption should only be available for fifteen years after the creation of the records, after which other exemptions should only be available for the same records for another fifteen years – when the thirty-year ‘passage of time’ provision would be applicable. Because of the sensitivity of the records involved, both the Information Commissioner and the Federal Court should adopt special procedures where complaints about the Cabinet records exemption are involved.’

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• Treasury Board Secretariat, Access to Information: Making it Work for Canadians.

ATIA Review Task Force report, 2002:

‘4-3. The Task Force recommends that Cabinet confidences no longer be excluded from the Act and that they be protected by a mandatory class exemption. ‘4-4. That a definition of “Cabinet confidence” be added to the Act, focusing on information that would reveal the substance of matters before Cabinet, and deliberations between or among Ministers. ‘4-5. That a prescribed format be developed for Cabinet documents that would allow for easy severance of background explanations and analyses from information revealing Cabinet deliberations such as options for consideration and recommendations; and the Act be amended to allow access to this background material once the related decision is announced, or after five years have passed, unless it contains information that should be protected under another exemption. ‘4-6. That the government consider reducing the protection for Cabinet confidences from 20 to 15 years. ‘4-7. That a decision to refuse to disclose information on the basis that it is a Cabinet confidence be reviewable by the Federal Court.’ • Bill C-201, introduced by NDP MP Pat Martin, 2004:

C-201 amends the Act to add mandatory exemption for Cabinet confidences; definition of Cabinet confidences: ‘any information that would reveal the substance of deliberations between minister of the Crown in respect of the making of government decisions or the formulation of government policy, including decisions of Council before they are implemented, and includes draft legislation’; Cabinet confidence protection limited to 15 years (s. 25) ‘The enactment […] (e) brings Cabinet confidences under the Act; […] (k) specifies what Cabinet records must be disclosed or not disclosed; (l) gives the Prime Minister discretion to release any record of a previous Cabinet if doing so is in the public interest;’

• John Reid, former Information Commissioner of Canada, model ATIA bill, 2005

(underlined parts are Mr. Reid’s amendments to the existing Act):

‘42. Section 69 of the Act is replaced by the following:

69. (1) The head of a government institution shall refuse to disclose any record requested under this Act that contains confidences of the Queen's Privy Council for Canada.

(2) In this section,

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"confidences of the Queen's Privy Council for Canada" means information which, if disclosed, would reveal the substance of deliberations of Council or the substance of deliberations between or among ministers;

"Council" means the Queen's Privy Council for Canada, committees of the Queen's Privy Council for Canada, Cabinet and committees of Cabinet.

(3) Subsection (1) does not apply to

(a) confidences of the Queen's Privy Council for Canada that have been in existence for fifteen years or more;

(b) background explanations, analyses of problems, or policy options presented to Council for consideration by Council in making decisions, if

(i) the decisions to which the information relates have been made public, or

(ii) four years have passed since the decisions were made; or

(c) decisions of the Queen's Privy Council for Canada if

(i) the decisions or the substance of the decisions have been made public, or

(ii) four years have passed since the decisions were made.’

• Justice Department of Canada, A Comprehensive Framework for Access to

Information Reform: A Discussion Paper, 2005:

‘While the Government strongly believes that the Cabinet decision-making process must continue to be protected, it also recognizes that the current regime is twenty years old and needs to be modernized. In particular, it is important that any new legislative scheme should reflect, in as full and appropriate a manner as possible, the recent court decisions. ‘In addition, there are other changes that can be made and should be considered to enhance transparency and to ensure that the overall scheme is fair and balanced, in light of all relevant considerations. ‘The Government is considering the following changes to the Cabinet confidence regime: On the scope of protection, the Government would narrow the ambit of Cabinet confidentiality by focusing on its essence in a manner largely similar to what exists in the provinces and in most other Commonwealth countries. The new – and shortened – definition, which would be in keeping with the Task Force’s recommendation, would be applicable to the three Acts. ‘The Government is considering the following changes to the Cabinet confidence regime: On the scope of protection, the Government would narrow the ambit of Cabinet

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confidentiality by focusing on its essence in a manner largely similar to what exists in the provinces and in most other Commonwealth countries. ‘The definition of a Cabinet confidence, more formally referred to as a “Confidence of the Queen’s Privy Council for Canada”, would essentially focus on information or communications that reveal the substance of Cabinet’s deliberations, decisions, and submissions. In addition, the definition should give full effect to the decision of the Federal Court of Appeal in Ethyl.221 ‘Cabinet confidences are currently excluded from the application of the Access to Information Act and the Privacy Act, and the Government believes this should continue with one important modification. The Government would enshrine in the legislation the right of the Information Commissioner (and the Privacy Commissioner) to go to court to challenge definitional issues [….]’

• Justice Gomery report, Restoring Accountability, 2006:

‘[There should be a harms test for] the section 69 category of records considered to be confidences of the Privy Council; in addition, there should be a list of records that would not be considered confidences of the Privy Council; the 20-year rule should be shortened to no more than 15 years; the definition of “discussion papers” should be considerably broadened (since the shorter four-year rule applies to such records); and the rule of nondisclosure should not apply where the decision to which the confidence relates has been made public.’

• Government of Canada discussion paper, Strengthening the Access to Information

Act, 2006:

'A statutory amendment could be enacted to grant the Information Commissioner a limited right of review of the issuance of certificates by the Clerk of the Privy Council, therefore ensuring the Information Commissioner's review of the Cabinet confidence exclusion.’

• Bill C-556, introduced by Bloc Quebecois MP Carole Lavallée, 2008:

‘44. Section 69 of the Act is replaced by the following: 221 In the Babcock case, the Supreme Court of Canada decided that, under Sec.39, the Clerk has a discretion, rather than a mandatory duty, to protect Cabinet confidences. The decision to object to the production of documents, the Court held, could be exercised by the Clerk only after weighing the potential harm of disclosing a Cabinet confidence against the benefit to the administration of justice that would flow from its disclosure. This is what has come to be known as ‘public interest balancing.’ - 2 Canada (Minister of Environment) v. Canada (Information Commissioner), [2003] F.C.A. 68 [Ethyl].

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69. (1) The head of a government institution shall refuse to disclose any record requested under this Act that contains confidences of the Queen’s Privy Council for Canada. (2) The following definitions apply in this section. “confidences of the Queen’s Privy Council for Canada” means information which, if disclosed, would reveal the substance of deliberations of Council or the substance of deliberations between or among ministers. “Council” means the Queen's Privy Council for Canada, committees of the Queen's Privy Council for Canada, Cabinet and committees of Cabinet. (3) Subsection (1) does not apply to (a) confidences of the Queen’s Privy Council for Canada that have been in existence for 15 years or more; (b) background explanations, analyses of problems, or policy options presented to Council for consideration by Council in making decisions, if (i) the decisions to which the information relates have been made public, or (ii) four years have passed since the decisions were made; or (c) decisions of the Queen’s Privy Council for Canada if (i) the decisions or the substance of the decisions have been made public, or (ii) four years have passed since the decisions were made. 44. Paragraph 69.1(2)(a) of the Act is replaced by the following: (a) all proceedings under this Act in respect of the information, including an investigation, appeal or judicial review, are discontinued

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Canadian provinces The provincial FOI laws take a very different stance on cabinet records than does the ATIA, as noted in the RPG report:

Most provincial freedom of information legislation has chosen to include a mandatory exception for cabinet confidences, rather than exclude them from the coverage of their respective acts, and the result has not had an negative impact on the effectiveness of the collective decision-making of these cabinets. The provincial models will be instructive in considering reform at the federal level of section 69.222

The FOI laws generally define the exemption in similar language to that found in the Nova Scotia Act, that is, the ‘substance of deliberations of the Executive Council or any of its committees, including any advice, recommendations, policy considerations or draft legislation or regulations submitted or prepared for submission to the Executive Council or any of its committees.’ As well, therein the exemption usually applies to ‘information in a record of a decision made by the Cabinet on an appeal under an Act.’

222 RPG Information Services, op.cit

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Yet interestingly, Nova Scotia’s FOI law is the only one in which records of cabinet deliberations ‘may’ be released - an example others could consider. (As well, Manitoba’s law allows cabinet to release its own records if it consents). As Nova Scotia’s was the first FOI law passed in Canada (in 1977), it almost appears as if other provinces’ lawmakers regarded the discretionary nature of that exemption as some sort of naïve error, which they hastened to ‘correct’ to a mandatory one as they forged their own statutes. Regarding time limits, cabinet deliberations may be withheld for only 10 years in Nova Scotia; 15 years in the Yukon, British Columbia, Alberta and the Northwest Territories; 20 years in Newfoundland and Labrador, Ontario, Prince Edward Island, and the federal ATI Act; 25 years in Quebec and Saskatchewan; 30 years in Manitoba (although the Manitoba government plans to shorten this to 20); and forever in New Brunswick. Why not shorten the ATIA’s time restriction to 10 years? On the important exception of factual background papers, in Nova Scotia, the Yukon, B.C. and Alberta, such background papers cannot be withheld if the cabinet decision cabinet decision to which they relate is made has been implemented or made public, or else if more than five years have passed since the decision was made or considered.223 To give credit where due, this is one of the very rare instances where the federal ATIA – with its four year limit for background papers – surpasses the provinces’ FOI laws. Unfortunately, cabinet background papers per se are not mentioned in the FOI laws of New Brunswick, Newfoundland and Labrador, Saskatchewan, the Northwest Territories, and Prince Edward Island (although some may argue that such papers might be implicitly included in the terms used). Worse, two provinces explicitly state that documents such as background papers must be withheld to the same extent and time that cabinet deliberations are: Manitoba (‘discussion papers, policy analyses’ and ‘a record prepared to brief a minister’), and Quebec (‘studies made within the Ministère du Conseil exécutif or the office of the secretary of the Conseil du trésor regarding a recommendation or request made by a minister, a cabinet committee or a public body…’). Woefully, Alberta’s then premier Ralph Klein amended Alberta’s FOI law to block access to the briefing books created for incoming cabinet ministers. Regrettably, as with the ATIA, none of the other FOI statutes contain any harms tests for the cabinet records exemption. Yet, seven Canadian provinces and territories do have public interest overrides for cabinet records in their FOI laws: Nova Scotia, Newfound-land and Labrador, the Yukon, Ontario, British Columbia, Alberta and Prince Edward Island. All these overrides are mandatory, except for Nova Scotia’s discretionary one.

223 It is always worth bearing in mind that background papers to cabinet could still be withheld in whole or in part due to other ATIA exemptions, e.g., if such a document contained someone’s personal information, or security or defense matters.

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The FOI laws of Manitoba, Saskatchewan, Quebec and the Northwest Territories have public interest overrides for certain other topics, but not for cabinet records. (Only New Brunswick has no override at all, see chapter 5.)

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POSTSCRIPT - BRITISH CABINET OPENED UP?

In February 2008, Information Commissioner Richard Thomas ordered cabinet to release minutes of two cabinet meetings before the Iraq war in reply to an FOI request.

Mr. Thomas's unprecedented edict covers two meetings in March 2003, the first when former attorney general Lord Goldsmith presented his original legal advice that an invasion might be illegal without an explicit United Nations resolution, and the second when Lord Goldsmith presented his final advice that an invasion was lawful.

The commissioner, who was allowed to inspect the minutes as part of his deliberations [unlike the commissioner in Canada], said that while he respected the government's position, ‘arguments for the withholding of the information are outweighed by the public interest in its disclosure.’

He argued that the cabinet records exemption must be balanced against a public interest test. In this case the information available so far was not enough to allow scrutiny of how decisions were taken. Disclosure would ‘therefore serve the public interest in respect of transparency and public understanding.’ He maintained that his ruling would not undermine the convention of cabinet collective responsibility, nor would it ‘set a dangerous precedent in respect of other cabinet minutes.’

The Times reported that the ruling would almost certainly be appealed by the Cabinet Office to the Information Tribunal, and there is then a ministerial veto: ‘It is hard to see Mr Thomas and the complainant winning.’

In Britain, standard practice is to release cabinet minutes 30 years after they have been taken. ‘The fear is that by allowing the minutes to be released now, ministers will be much less willing to express frank views in Cabinet in the future,’ wrote a journalist for The Independent. ‘With some believing that the Cabinet already holds far less sway than in the past, it could cause a further erosion of its power. The really juicy discussions could end up happening outside the Cabinet, during informal and un-minuted meetings. If that happens, we will have ended up with less transparency rather than more.’

- It is the result, not the decision-making, that matters, by Peter Riddell. The Times (London), Feb. 27, 2008 - Should cabinet minutes be released, and what difference would it make?; The big question, by Michael Savage. The Independent (London), Feb. 28, 2008

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_____________ Tony Blair spoke to media baron Rupert Murdoch three times in the run-up to the invasion of Iraq, it emerged in July 2007. The Cabinet Office agreed to publish the dates of their conversations and meetings one day after Mr. Blair left office. No details of informal meetings or conversations have been disclosed. Liberal Democrat Lord Avebury had requested the information through the FOI law, and Information Commissioner Richard Thomas ruled that official contacts could be disclosed. The Cabinet Office appealed but capitulated ten months later; its spokesman said: ‘We decided it was in the public interest to release it.’ [By contrast, Canada’s prime minister is still fighting in court to withhold his appointment books; former Canadian Privacy Commissioner George Radwanski protested that ATIA requests for those records were ‘tantamount to informational rape.’]

- Revealed: Blair's talks with Murdoch on eve of war, by Tania Branigan. The Guardian (London), July 19, 2007

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AUSTRALIAN CABINET FOI RULES TO CHANGE?

In November 2007, Queensland Premier Anna Bligh refused to make public dozens of briefing notes she received after succeeding Peter Beattie. To prevent them being made public through the FOI law, Ms Bligh took the documents into state cabinet. The premier said the briefing notes informed ministers about their new portfolios following a cabinet reshuffle.

The move came after former coalition leader Lawrence Springborg made FOI requests for the material. ‘I do not believe that Queenslanders expect that confidential briefings to new ministers should be passed on to the leader or member of the opposition,’ said Ms. Bligh. ‘It frankly makes a mockery of freedom of information.’

- Bligh refuses to release secret papers. Herald Sun (Australia), Nov. 16, 2007

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In March 2008, Australian opposition leader Lawrence Springborg said there was a need to end the practice of ministers being warned about potentially embarrassing FOI requests by public servants, allowing them to take documents to cabinet to prevent their release. He said that, if the cabinet-exemption rule could not be sufficiently tightened, guidelines should be put in place limiting communication between the minister and the department about the request. One newspaper inquired aloud, ‘What was in the almost 11,000 documents The Courier-Mail reported were exempted from FOI searches last year [2007] because they were taken to cabinet?’

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- Springborg wants fines for underhand FOI acts, by Steven Wardill. The Courier Mail (Australia), March 11, 2008

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In January 2008, a review of Queensland's FOI law – which has been endorsed in full by Queensland’s Anna Bligh – lambasted the cabinet exemption rule often used by ministers to withhold material. In a discussion paper released, an expert review panel found the current cabinet exemption rule was undermining the state's entire FOI regime.

The 214-page discussion paper, written by review panel head and former Courier-Mail journalist David Solomon, said it was unacceptable that legislative amendments now allowed ministers to freely hide documents that had nothing to do with Cabinet decisions. ‘The very existence of this bolt hole sends the wrong message to public servants about the desirability of openness,’ he said.

The paper (http://www.foireview.qld.gov.au/Discussion-paper.htm) raised the possibility of lifting the 30-year veil of secrecy surrounding Cabinet documents where material was in the public interest or contained statistical material. Dr. Solomon advised the 30-year rule on releasing Cabinet documents be reduced to 10 years.

- Experts slam secrecy rule used by Cabinet, by Steven Wardill. The Courier Mail (Australia), January 31, 2008

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Chapter 9 ~ ‘Let the Record Show. . . ‘

Record Creation and Retention

Are public officials obliged to create records to document their actions, and to

preserve the records they create?

‘A Conservative government will: Oblige public officials to create the records

necessary to document their actions and decisions.’

- Conservative Party of Canada, election promise, 2006

(Promise not fulfilled.)

______________ In its purpose clause, Canada’s Access to Information Act grants the public access to ‘information in records.’ Yet this right to obtain records is meaningless if documents have not been created in the first place, were not retained, or cannot be located. Such a system is as resistant to accountability as any autocracy of the past. One might wonder how such a fundamental FOI problem can remain so neglected; perhaps the public and journalists presume the record management system is working adequately. The reality, however, is quite different. The remarks of former Information Commissioner John Reid to the Canadian Newspaper Association in 1999 are regrettably current:

I cannot overstate the point: Information management in government is in crisis. The crisis does not only threaten the viability of the right of access, it also threatens to undermine national archival requirements and the ability to deliver good government to the citizenry. Years of government restraint and downsizing have been devastating to the records management discipline. . . . The time is right, it seems to me, for an Information Management Act, designed to regulate the entire life-cycle of government-held information.224

Public bodies generate and collect enormous quantities of information, the vast majority of which is actually destroyed over time. One might first consider that in the ATIA’s definition section, ‘“record” means any documentary material, regardless of medium or form.’ Although it is often overlooked even by journalists, all Canadian FOI laws grant the applicant access to records other than paper, e.g., audiotapes, films, drawings, maps, microfilm, photographs, CDs and printouts of emails (include blackberry messages).

224 John Reid, Information Commissioner of Canada, Remarks to the CNA Publishers Forum on Access to Information. Nov. 25, 1999 http://www.infocom.gc.ca/speeches/speechview-e.asp?intspeechId=17

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Some of these formats have far shorter lifespans than paper, and may have special technological archival needs which can render them more difficult and costly to preserve.

As noted by Professor Alasdair Roberts, in a chapter aptly titled ‘Liquid Paper’ in his essential book Blacked Out, the preservation and retrieval of records for FOI applicants has been greatly complicated by the digital age.225 He notes that popular thinking still refers to ‘the official file,’ the one mythical ‘smoking gun’ marked TOP SECRET. But such a reality has long since past. Over the last 30 years, the formats of records have changed immensely; electronic records are often preferred to paper (partly to create a ‘paperless office,’ which remains an unachieved goal). Because revising records is less costly now, the number of transactions has exploded. Therefore he adds, and unfortunately for journalists, ‘the stockpile of government information has been liquified – broken down into a vast pool of elements whose significance, taken independently, is not easily grasped.’226 This situation also makes the processing of FOI requests far less straight-forward than before. The government insistence that information seekers use the ATIA process in preference to routine release has had a further negative effect, Prof. Wesley Wark wrote: ‘The demands of servicing access requests have swallowed up resources that should have been devoted to the orderly retention, processing and transferal of historic records to our main repository, Library and Archives Canada. We have thereby placed in jeopardy the modern historical record. No small unintended consequence.’227

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Since the passage of freedom of information laws, the deplorable trend towards ‘oral government’ has generally expanded: officials no longer commit their thoughts to paper, and convey them verbally instead, to avert the chance of the information emerging in

225 In the United States, too, one citizens group released a report in April 2008 saying the federal government is severely mismanaging its electronic records; that despite the ready availability of off-the-shelf products that would allow federal agencies to manage their records electronically, agencies continue to cling to outdated, inefficient and ineffective paper record keeping systems. - New CREW Report Finds Federal Government Electronic record Keeping Practices Abysmal. Targeted News Service, April 16, 2008 www.citizensforethics.org 226 Alasdair Roberts, Blacked Out: Government Secrecy in the Information Age. New York: Cambridge University Press, 2006. In fact, email is in some ways more enduring than paper, when we consider backup tapes, and email copies floating about amongst recipients (which may then be copied to many further recipients in turn, and so forth). The main problem for the media now becomes volume: One study cited by Roberts found that in 2002, Canada’s 150,000 federal public servants exchanged about six million emails every working day. 227 Waiting for access, by Wesley Wark. National Post June 26, 2008

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response to FOI requests.228 (It is more the case for the higher level policy records than for operational documents.) This could become the greatest single threat to the FOI system, yet in the end, of course, governments can only legislate conduct but not attitudes. Since the ATIA was passed, one journalist noted in the 1980s, access requests caused the government many embarrassments: ‘As a result, many top-level briefings are done orally. Very little paper floats around, paper that could come back to haunt the government in a later news story.’229 Fifteen years later, Mr. Reid observed the same problem:

A deeply entrenched oral culture exists, tolerated if not encouraged, at the most senior levels of government. The government’s policy on the management of government information holdings (which is a good policy) is largely ignored in practice and accountability for its enforcement/implementation is so diffuse as to be non-existent.230

The 2002 Treasury Board task force also found that some government agencies question whether the ATIA ‘may undermine transparency by discouraging officials from committing views to paper’ and from providing frank advice to ministers for ‘fear of being misinterpreted’ when documents are released.231 Whether at a tribal campfire or a ministerial boardroom table, the device of verbal-only communication can be used for contrary purposes, i.e., to encourage one to remember, or to permit one to forget: If ‘oral history’ is utilized by aboriginal bands to share or preserve news of the past, ‘oral government’ may instead be used by politicians to hoard or erase it. Hence there is an urgent need for this government to fulfill its pledge to

228 Yet Prof. Roberts takes a slightly brighter view, noting that ‘one recent Canadian government study that examined documents produced before and after the Access to Information Act was passed found no evidence that the law had any influence on record keeping by government officials.’ Another key question arose, he adds: would officials now censor themselves in email? ‘This fear has proved to be overstated. E-mail has become too deeply entrenched in contemporary work life for self-censorship to be an effective strategy: Writing elliptically takes time, and undermines the effort to get work done.’ - Roberts, ibid 229 Stevie Cameron, Ottawa Inside Out. Toronto: Key Porter, 1989 230 John Reid, Information Commissioner of Canada, Submission to the Commission of Inquiry into the Sponsorship Program and Advertising Activities. Ottawa, Oct. 14, 2005 http://www.infocom.gc.ca/pressreleases/preleaseview-e.asp?intPreleaseId=26 Indeed, the reality still is that public servants who delete important emails know they are very unlikely to be caught or publicly exposed, and if so, still more unlikely to be seriously disciplined even if there were legal penalties; they could plead ignorance of the rules, or technological ineptitude. 231 Treasury Board Secretariat and Justice Department of Canada, Access to Information: Making it Work for Canadians; Report of the Access to Information Review Task Force. Ottawa, 2002 http://www.atirtf-geai.gc.ca/report2002-e.html

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‘oblige public officials to create the records necessary to document their actions and decisions,’ as stated in the unfulfilled Conservative pledge of 2006.

The taxpaying public needs and deserves much better; whole dimensions of our political awareness and historical consciousness have vanished due to such practices, and the loss to the common good is incalculable. A decade ago, the former information commissioner John Grace issued a sharp rebuke to the ‘oral government’ concept:

As to the “don’t-write-it-down school,” any effort to run government without creating records would be humorous if it were not so dangerously juvenile. Though it is impossible to quantify its seriousness (and its extent is probably exaggerated by critics of access), any such evasion of access poses a threat not only to the right of access, but to the archival and historical interests of the country. Left without written precedents and decisions, other officials are deprived of the benefit of their predecessor’s wisdom - or folly. The misguided effort to avoid scrutiny by not making records is driven by ignorance of the law’s broad exemptive provisions.232

Yet even when records are created, what guarantees have we that they will be preserved? Section 12 of the Library and Archives of Canada Act, 2004 states that no government record can be destroyed without the written consent of the Librarian and Archivist; yet penalties are lacking, and one can legitimately ask how closely the Act is followed in practice.233 (Last August, for example, the federal information commissioner launched an investigation into ‘serious allegations’ about the improper destruction of documents at the National Gallery of Canada. An official had been terminated due to his admitted deletion of e-mails that were requested under the ATIA by an employee involved in a union grievance procedure.234)

232 John Grace, Information Commissioner of Canada, Annual Report 1996-97. 233 Unauthorized document destruction is one problem; removal is another. In the late 1980s, one former minister wanted to write his memoirs with the aid of ministerial files: ‘When he left the office, reliable sources say, he took with him 67 filing cabinets of documents, paper the government has been trying to recover ever since.’ (Cameron, op. cit) By contrast, if a member of the public entered the office and carried away the same documents, he or she might be charged with the theft of government property. (Such action by former ministers was also deplored by historian Carl Berger in Clio’s Craft: A Primer of Historical Methods, edited by T. Crowley. Toronto: Copp Clark, Pittman, 1988) It may not be easy to determine if this practice has ceased. Former ministers should make an ATIA request for copies of the records, as must anyone else. 234 Information commissioner probes gallery e-mail deletion, by Paul Gessell. The Ottawa Citizen. Aug 2, 2008

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As the government converts to digital record creation and archiving, protocols regarding this format will surely become the most ambiguous and contentious of all, e.g., some public servants might not recall that email and blackberry messages are to be preserved. There is a discussion on ATIA policies regarding blackberry and PIN to PIN records in the Commissioner’s 2007-08 Annual Report, which notes ‘there is no uniform federal policy on PIN-to PIN communication and institutions have been advised to each craft their own policy.’ Policies are insufficient; the practices need to be set in law.235

WHERE ARE THE RECORDS?

In 2006 two of Parliament’s independent watchdogs said their investigations were being thwarted by federal officials who refuse to keep written records of governmental deliberations and decisions. Too often bureaucrats try to avoid accountability and oversight by simply not writing down what it is they are doing, even in cases involving expenditures worth millions of dollars, Auditor-General Sheila Fraser and Information Commissioner John Reid saidy. Mr. Reid’s investigators said bureaucrats use a variety of ploys to avoid leaving a paper trail. These include briefing cabinet ministers orally without background documents and using BlackBerry privacy technology to send e-mail messages that avoid routing through computer servers that would create copies of the e-mail traffic. Some bureaucrats write cryptic handwritten notes on disposable Post-it notes that can be discarded before a final record is created. Ms. Fraser complained in her recent report on the gun registry about the dearth of documentation regarding a decision not to record $21-million in costs for a current fiscal year, but to carry it over. Her auditors were amazed not just by the decision, but by the lack of documentation. ‘It seems to us like a fairly significant decision,’ she said in an interview. ‘There was a meeting held where that decision was made and there is great confusion as to what was actually decided. There is confusion about who actually attended. There is even some confusion about the date the meeting was held.’ Ms. Fraser said undocumented decision-making ‘is not the norm in government, but it is not an exceptional event: the ATIA ‘has had a chilling effect [on bureaucrats] and affected whether or not reports are written’ - From: Decisions lack proper paper trail, watchdogs complain, by Jeff Sallot, Globe and Mail, 22 May 2006 http://www.theglobeandmail.com/servlet/story/ LAC.20060522.DOCU22/TPStory/National

235 See also John McDonald, Information Management in the Government of Canada: A situation analysis, for the Chief Information Officer, Treasury Board Secretariat and The National Archivist. 2000 http://www.tbs-sct.gc.ca/ip-pi/im-gi/imreport/imreport-rapportgitb_e.asp

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There are at least five reasons why Canada needs a more comprehensive and detailed law than the LAC statute to create and preserve records, with penalties for non-compliance:

1) Good governance. ‘Records are a government, as well as a public, asset. They contain the evidence that helps citizens understand the ‘how’ of governmental actions and the ‘why’ of official decisions.’236 Sound decision-making for present or subsequent administrations is impossible without corporate memory, and ‘oral government’ cannot achieve that end. ‘The strongest memory is not so reliable as the weakest ink,’ observed Confucius. Records of decisions could also provide government with legal protection in certain lawsuits. After the Scotland’s FOI law was passed, ‘The benefits of good records management are being felt internally as much as externally,’ said Scottish Information Commissioner Kevin Dunion.237

2) Personal information. The truth and integrity of such records can be indispensable to protect the human rights of a Privacy Act applicant, and others. As noted by the Commonwealth Human Rights Initiative:

The human cost of poor recordkeeping is often seriously under-estimated. Across the Commonwealth, newspapers regularly tell the stories of life-long tragedies caused by careless record keeping: some poor ticket-less traveler is imprisoned awaiting trial for years beyond the maximum sentence, or a long cured young woman is abandoned in a mental institution for decades because the system has misplaced a file. Conversely, good record-keeping benefits both government and citizen alike.238

For example, several hours of surveillance footage recorded at the Vancouver airport the night Polish immigrant Robert Dziekanski was Tasered and died were inadvertently

236 Commonwealth Human Rights Initiative, Open Sesame: Looking for the Right to Information in the Commonwealth. New Delhi, India, 2003 http://www.humanrightsinitiative.org/publications/chogm/chogm_2003/chogm%202003%20report.pdf 237 Opening new doors thanks to the public's right to know; A report has found that the act is starting to have an effect in officialdom, by Douglas Fraser. The Herald (Glasgow), March 10, 2008. The article added positively that ‘Beyond the high-profile cases in the headlines, there is now academic evidence the act is having an effect on public sector culture. More than two-thirds of organisations believe it has had a significant change of culture and fewer than one in ten see little difference. Nearly half say it has made them more open and they are more likely, he says, to treat information requests as a normal part of their role, rather than treating them "like an unexploded grenade". “What we've seen is that most authorities are saying the act has been beneficial," says Mr. Dunion.’ 238 Open Sesame, op.cit.

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erased by the Canada Border Services Agency a week after his death, the Vancouver Sun learned in April 2008.239

3) Historical legacy. The history of a people, produced at public expense, is a commonly-held public treasure. History can be of many kinds: political, ethnic, social, economic, military. Familiar proverbs are sometimes invoked here, such as ‘Those who do not remember the past are condemned to relive it,’ and ‘One cannot know where (or what) one is today, or where one is going to, if one does not know where one has been.’ A prime example of this truth would be media stories of 1992 that cited cabinet meeting records of 1970 that were obtained through the ATIA: during the FLQ crisis, the minutes revealed that the RCMP commissioner advised cabinet not to invoke the War Measures Act, this being unnecessary; cabinet disregarded his advice and invoked it anyways. 4) Evidence for media. ‘Get the record,’ is a frequently heard command from editors to reporters. Although written records of events and issues are an indirect account of reality, and can be flawed themselves, they are sometimes all the media has. Certain stories would not be published without them; vital articles have still been produced without any records at all, but documents can at times be essential to confirm rumors and suspicions, prove a critic’s assertions, defend the media against libel actions, and even to fish for story ideas (an entirely justifiable activity, by the way). 5) Integration and coordination of effort. Without a more detailed and comprehensive records law, ATIA officials, archivists and others could otherwise duplicate their efforts or work somewhat at cross-purposes. For instance, ‘The priority of archivists, which is to preserve historic documents, does not serve the aim of active record management, which is to ensure that records are systematically maintained through their entire life cycle and systematically destroyed.’240 As well, time is money, and ATIA request processing costs can rise when records are so disordered that it takes officials longer to find them.

______________ Controversies about record retention occur throughout the world. For example, in January 2008 a federal judge in New York said he was ‘astonished’ that the CIA investigators had not kept records about interrogation tapes that were destroyed in 2005; he raised the possibility that CIA officials had intentionally not placed the tapes in the investigative files so as to avoid an FOI request.241 Canada Post destroyed thousands of boxes of documents and deleted e-mails en masse in the months before it was due to be covered by

239 Video of YVR taser victim erased. Border services says it deleted security footage inadvertently, by Chad Skelton, Vancouver Sun, April 11, 2008 240 Open Sesame, op. cit. 241 U.S. Judge Faults C.I.A. on Handling of Videos, by Alan Feuer. The New York Times, January 18, 2008

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the ATI Act in 2007. 242 Figures were reported in 2006 showing that Scottish officials doubled their spending on document shredders in the lead-up to Scotland’s FOI law being introduced.243 Improper record destruction has a long tradition in Canada, and the sheer volume of information vital to the public interest that has been lost forever over the years is grievous. In the late 1980s, for instance, one journalist reported that ‘Government officials are quietly shredding paper at breathtaking speed . . . .’ After the ATIA was implemented in 1983, the federal government bought nearly 700 crosscut shredders at a cost of $10 million, and owning one became a sign of prestige. ‘What are they all used for? When asked, one senior mandarin confessed that he systematically shredded everything he thought he could get away with to avoid paper trails sought by investigative reporters under access to information law.’244 One could wonder how much has really changed since then. In 2007, during the RCMP pension fund inquiries, a retired Mountie recently stunned a Commons committee with revelations that RCMP brass had been involved in altering, censoring, hiding and even pilfering official documents to thwart their lawful release under the ATIA. The documents in question were not matters of national security - they were memos, reports and other key information about money missing from the force's pension fund.245 Unfortunately, there are yet other pernicious practices employed to undermine the FOI process, actions which can be committed with or without remorse. A reformed ATIA should explicitly prohibit these, with penalties for violations. Although it seems quite embarrassing to need to cite such practices in an FOI statute, regulations to bar them are insufficient, because such rules can too easily be dropped at any time by a future administration. Some officials sadly evidence a fertile, ever-renewing imagination for ‘creative avoidance,’ as one commissioner called FOI resistance. Besides recalling my own FOI experiences, such cat-and-mouse games have been widely reported from various nations, and from sources such as information commissioners’ reports, public inquiries, books and news articles. Practices can include, amongst others: 242 Canada Post shredding machines in overdrive, by Peter Zimonjic, Toronto Sun, July 19, 2008. The records for this story were obtained through an ATIA request A Canada Post spokesperson replied the purging of documents was not rushed to beat a deadline but to get records in order so they could respond to information requests. 243 Holyrood doubled shredder budget ahead of FOI law; Parliament officials claim there is no conspiracy, by Paul Hutcheon. The Sunday Herald (Scotland), April 23, 2006 244 Cameron, op.cit. 245 Let's keep this quiet; When it comes to ethics in government, cues come from the top, by Greg Weston. The Toronto Sun, May 15, 2007

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• Changing the title of a record sought by an ATIA applicant, sometimes after a request for it is received, then wrongly telling the applicant ‘we have no records responsive to your request.’ The law should make it make it absolutely clear it is only the subject matter that counts, not the record’s title per se. (Thankfully some FOI laws prohibit the destruction of a record after a request for it has been received, even if the record had already been scheduled for destruction.) • Post-it sticky notes. Such notes affixed to documents can contain the most important information on a topic. Yet - on hopefully rare occasions - when an FOI request comes in, some officials have removed the sticky notes, photocopied the denuded original, mailed that copy to the applicant, and then later reattached the notes to the originals – all in the false assumption that the sticky notes are not covered by FOI laws (or knowing they are nonetheless).246 Officials can also write penciled notes that can be easily erased. • Storing records offsite - or at a site owned by a private company partnering with government - and so claiming they are not in the state’s ‘custody’ and cannot be accessed. (See Quebec’s FOI solution.247) • Sending illegible photocopies, which can delay the FOI replies for months as the applicant appeals, or applies over again for legible copies of the same records • Incorrectly claiming that records are in too ‘fragile and poor condition’ to be accessed, or that documents are not available in a readable format. • Providing only a positive summary of the records instead of the original records sought, offering other information as a compromise, or burying the applicant with positive but not really relevant records • Mingling exempt and non-exempt records together, then claiming an exemption for them all; for example, incorrectly placing records into files of cabinet or international relations documents

246 In the British Columbia FOI regulations, any marginal note made upon a document transforms that record into ‘a new record,’ and a separate photocopy is made of it for FOI applicants: ‘Marginal notes and comments or "post-it" notes attached to records are part of the record, not separate transitory records. If the record is requested, such attached notes are reviewed for release together with the rest of the record.’ Ideally, such FOI regulations would be in force everywhere. http://www.cio.gov.bc.ca/services/privacy/Public_Sector/backgrounders/transitory_records.asp 247 Quebec’s FOI law takes account of this issue: ‘1.1. This Act applies to documents kept by a public body in the exercise of its duties, whether it keeps them itself or through the agency of a third party.’ Other provincial FOI laws provide that records in the ‘custody’ and ‘control’ of public bodies are subject to the statute.

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• Misidentifying records, a major problem with FOI requests for cabinet records. (See the disputes over ‘memorandum to cabinet’ vs ‘background papers.’) • Stonewalling, i.e., incorrectly claiming that records do not exist when they do; or not searching properly and then claiming documents cannot be found • Inflated fee estimates. This was detailed during the 1997 inquiry on the Canadian military scandal in Somalia, along with established cases of improper document alteration.248 • Delaying responses until after the applicant’s deadline to appeal to the commissioner has run out. With the ATIA, this is easier to accomplish now that applicant’s appeal deadline has been shortened from one year to 60 days • Mislabeling records as ‘preliminary’ or ‘investigatory,’ and so forth; or arguing that the records need not be released under the ATIA because they will be published within 90 days, a limit that government can extend indefinitely – and then not publishing them

• ATIA section 4.(3) prescribes that an agency must produce a record for an applicant if this can be done ‘using computer hardware and software and technical expertise normally used by the government institution.’ But some agencies exaggerate the difficulty of doing this, and so refuse to create records, or overstate fees. (In 2006 the Information Commissioner reported that the RCMP wrongly demanded $1.6-million in fees from a journalist who had filed an ATIA request, even though the question could have been answered with a common computer program.249)

• Overstating claims that searching for records would ‘unreasonably interfere with the operations of the government institution’ - per ATIA Sec. 9.(1) – which permits the agency to delay responding for an unspecified and unlimited ‘reasonable period of time’

• Interpreting the wording of an applicant’s request too narrowly, or even altering it and then replying to the agency’s re-worded version; delaying the release for months with clarifications and re-clarifications until an issue is stale, or until after an election250

248 http://www.dnd.ca/somalia/somaliae.htm 249 RCMP criticized for $1.6-million data fee; Journalist faced exorbitant bill for criminal records, report says, by Bill Curry. The Globe and Mail, June 14, 2006. The RCMP told the applicant that $1.6-million was needed to pay for nearly 200 days of computer programming at a rate of $16.50 a minute, for a total of $1,599,840. ‘The Information Commissioner's investigation confirmed that the deposit demanded by the RCMP was far greater than the actual costs to the RCMP of complying with the request,’ said the Commissioner in his annual report to Parliament. ‘Despite the amount of data to be depersonalized and prepared for release on CD-ROM, off-the-shelf software was available to accomplish the task using very little [police] processing time.’

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Canada’s Access to Information Act, 1982:

There is no general mandate to create or preserve records noted in the ATIA, although Sec. 4. (3) includes a duty to create a record in reply to an ATIA request if this can be done without much hardship. There was, however, a narrower prescription added in 1999:

67.1 (1) No person shall, with intent to deny a right of access under this Act, (a) destroy, mutilate or alter a record; (b) falsify a record or make a false record; (c) conceal a record; or (d) direct, propose, counsel or cause any person in any manner to do anything mentioned in any of paragraphs (a) to (c).

(2) Every person who contravenes subsection (1) is guilty of (a) an indictable offence and liable to imprisonment for a term not exceeding two years or to a fine not exceeding $10,000, or to both; or (b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding six months or to a fine not exceeding $5,000, or to both.

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From the Library and Archives of Canada Act, 2004:

GOVERNMENT AND MINISTERIAL RECORDS

12. (1) No government or ministerial record, whether or not it is surplus property of a government institution, shall be disposed of, including by being destroyed, without the written consent of the Librarian and Archivist or of a person to whom the Librarian and Archivist has, in writing, delegated the power to give such consents.

(2) Despite anything in any other Act of Parliament, the Librarian and Archivist has a right of access to any record to whose disposition he or she has been asked to consent. (3) For the purposes of this section, the Librarian and Archivist may have access to a record to which subsection 69(1) of the Access to Information Act applies [cabinet confidences], only with the consent of the Clerk of the Privy Council and to a government record that contains information the disclosure of which is

250 Still other methods were detailed by former Australian FOI official Don Coulson. These included ‘pumping applicants for extra information to find out why they want documents, before briefing ministers and advisers; delaying the release by saying an application has been overlooked, the department is overloaded with requests and is under staffed; hiding behind the excuse that requests are too voluminous or time-consuming to process, often without helping applicants to narrow down exactly what they want; Others did not notify applicants of their rights of appeal.’ - Chris Tinkler, The FOI’s bag of dirty tricks. Sunday Herald Sun (Australia), November 10, 2002 http://ricksnell.com.au/FOI%20Reviews/FOI_102a.pdf

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restricted by or pursuant to any provision set out in Schedule II to that Act, only with the consent of the head of the government institution in question. (4) Despite anything in any other Act of Parliament, any officer or employee of a government institution may grant to the Librarian and Archivist access to any record to whose disposition the Librarian and Archivist has been asked to consent.

Section 15 of this Act bars the Librarian from granting access to cabinet records as noted in sec. 69(1) of the ATIA. It also compels every department - as defined in section 2 of the Financial Administration Act - to send the Librarian a written summary of public opinion research within six months of its completion.251

There are also a number of statutory requirements for the public sector to create records in specific circumstances - for example the Financial Administration Act, Employment Equity Act, Employment Insurance Act and the Treasury Board policy on the Management of Government Information.

BLOOD COMMITTEE RECORDS SCANDAL PROMPTED ATIA REFORM

More than anything else, one shocking event highlighted the urgent need for stronger record retention laws in Canada. Federal officials destroyed documents that might have been key to understanding the tainted-blood tragedy of the 1980s because they did not want to risk having to make them public, Information Commissioner John Grace concluded.252

In a report released in January 1997, Mr. Grace castigated two Health Canada officials for destroying all of the written transcripts and erasing all of the tapes of meetings of the Canadian Blood Committee, which oversaw the blood system in the crucial years 1982 to 1989. During those years 1,200 Canadians were infected with the AIDS virus while another 12,000 were infected with hepatitis C through blood and blood products.

251 Yet it appears that this is not always done. In May 2007 the Canadian Press reported that the prime minister's department failed to publicly disclose public-opinion research that it had sponsored in 2006. The $117,000 research project, conducted by Ipsos-Reid for the Privy Council Office - and obtained through the ATIA - delves into the views of three different immigrant communities about the Conservative government's five policy priorities. ‘Asked about the non-compliance, a PCO spokeswoman said officials were working to fulfill disclosure requirements. No explanation was given for the delay.’ - PMO failed to reveal its own research, by Jennifer Ditchburn, Canadian Press. The Globe and Mail. May 7, 2007

252 Key blood documents destroyed Federal officials acted to block files becoming public, Information Commissioner rules, by Anne McIlroy. Globe and Mail. January 23, 1997

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His report stated that the committee was under pressure from the Canadian Red Cross Society not to release documents to the public because they might be useful in lawsuits that had been filed by victims of the tragedy. He said the decision to destroy the documents was made in May 1989, after an ATIA request was filed by a Globe and Mail reporter. One official maintained the records were destroyed for ‘housekeeping purposes,’ a claim rejected by Mr. Grace for several reasons.

‘You will understand why I must take seriously and investigate thoroughly allegations of records being destroyed in order to thwart their release under the Access to Information Act,’ he concluded. ‘Any such destruction strikes at the heart of what the Federal Court has called the “quasi-constitutional” rights bestowed by that Act, being a wilful denial of those rights and a flagrant affront to the will of Parliament.’ One newspaper editorialized: ‘If evil does indeed reside in the banal, it is no stranger to craven, grey-faced functionaries whose most fervent wish is to remain anonymous and undisturbed. Thanks to commissioner Grace's landmark report, we now know who they are and what they did.’253

Yet Mr. Grace said no action could be taken against the individuals involved, one of whom was responsible for administering the ATIA at the department. The Act, he said, does not provide sanctions against those found to have improperly destroyed records, ‘perhaps because Parliament did not foresee public servants flouting this law,’ a viewpoint he regarded as ‘naïve.’ This event prompted Liberal government backbench MP Colleen Beaumier to introduce a bill to amend section 67 of the ATIA; it passed in 1999, and prescribes a maximum fine of $10,000 and two years in prison for destroying, altering or concealing records in regards to an ATIA request.254 (See details above.) But then, inexplicably, after being compelled to take one step forward, the government simply erased this progress on blood records transparency with one giant step backwards. The Health department’s blood committee was replaced in 1991 by the Canadian Blood Agency, which now oversees the blood program on behalf of provincial health ministries. The CBA was incorporated as a non-profit agency, and although it spends more than $300 million a year in public money financing the blood system, its proceedings are generally secret, and its records are exempt from the access law – unlike those of an identical entity in New Zealand. (See Chapter 4.)

253 Double-crossed: Shredder thwarts tainted blood victims. Editorial. The Vancouver Sun. January 24, 1997. 254 It is important to note that cabinet voted en masse against Ms. Beaumier’s bill, without explanation, yet it passed nonetheless. This was a very rare example of a Canadian MP successfully defying the will of the autocratic prime minister of the day, for there exists a much stricter party discipline on parliamentary votes in Canada than other nations, even in the United Kingdom. For this reason and others, it is extremely difficult for backbenchers’ progressive ATIA reform bills to pass.

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Global Commentary

• Article 19, Principles of Freedom of Information Legislation, 1999, endorsed by the

United Nations:

'Destruction of records - To protect the integrity and availability of records, the law should provide that obstruction of access to, or the willful destruction of, records is a criminal offence. The law should also establish minimum standards regarding the maintenance and preservation of records by public bodies. Such bodies should be required to allocate sufficient resources and attention to ensuring that public record-keeping is adequate. In addition, to prevent any attempt to doctor or otherwise alter records, the obligation to disclose should apply to records themselves and not just the information they contain.’

• Article 19, Model Freedom of Information Law, 2001:

‘19. (1) Every public body is under an obligation to maintain its records in a manner which facilitates the right to information, as provided for in this Act, and in accordance with the Code of Practice stipulated in sub-section (3).

‘(2) Every public body shall ensure that adequate procedures are in place for the correction of personal information.

‘(3) The Commissioner shall, after appropriate consultation with interested parties, issue and from time to time update a Code of Practice relating to the keeping, management and disposal of records, as well as the transfer of records to the (insert relevant archiving body, such as the Public Archives).’

• Commonwealth Secretariat, Model Freedom of Information Bill, 2002:

‘Preservation of records and documents. 44. (1) A public authority shall maintain and preserve or cause to be maintained and preserved records in relation to its functions and a copy of all official documents which are created by it or which come at any time into its possession, custody or power, for such period of time as may be prescribed.’

• Council of Europe, Recommendations on Access to Official Documents, 2002:

‘Public authorities should in particular: i. manage their documents efficiently so that they are easily accessible; ii. apply clear and established rules for the preservation and destruction of their documents; iii. as far as possible, make available information on the matters or activities for which they are responsible, for example by drawing up lists or registers of the documents they hold.’

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‘Paragraph ii refers to issues related to the preservation and the destruction of official documents. The preservation generally implies the transfer to archives services. There is a strong need for clear rules on these matters.’

• The Carter Center, Access to Information, a Key to Democracy, 2002:

Key Principles. ‘Is it an offence to shred records or lie about the existence of records in order to avoid disclosure?’

• Commonwealth Parliamentary Association, Recommendations for Transparent

Governance, 2004:

‘(8.1) Effective systems of record management are key not only to the effective functioning of an access to information regime but also to good governance. [….]

‘(8.2) Codes of practice relating to record maintenance can help promote a consistent approach across public bodies and can be used to ensure the highest possible standards in this area. Access to information legislation should require such codes to be developed in consultation with public bodies and then laid before Parliament.’ [More follows]

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Other Nations

Among the FOI laws of 68 nations, 37 of these (nine in the Commonwealth) include rules to preserve records, or send these to archives, or otherwise govern them. These jurisdictions describe the rules at some length within their FOI laws: Finland, Germany, Japan, Pakistan, Peru, Scotland, St. Vincent and the Grenadines, Thailand, and Trinidad.

The others’ FOI laws mainly transfer information management responsibilities to archival statutes: Albania, Austria, China, Columbia, Croatia, Denmark, Estonia, France, Hungary, Iceland, Ireland, Israel, Liechtenstein, Lithuania, Mexico, Moldova, Netherlands, Norway, Romania, Slovenia, Switzerland, Ukraine, Antigua, Australia, Belize, India, Jamaica, and South Africa.255 (I have not searched for nations that have only an archival law without an FOI law as well.)

255 Of course, such principles can fall short in practice. In Israel, for example, the State Comptroller issued a report in May 2004 critical of the lack of guidelines on the preservation of electronic records and warned that many were being lost or destroyed. The State Archivist, Dr. Tuvia Friling, resigned in protest in December 2004 following the refusal of the General Security Service and the Mossad to follow the 50 year rule and release security documents from the time of Israel's founding. http://freedominfo.org/countries/israel.htm

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Among the 29 jurisdictions with draft FOI bills, 15 include information management rules: Guatemala, Jordan, Mongolia, Palestine, Bangladesh, Guyana, Kenya, Malaysia, Malawi, Sri Lanka, Tanzania, Uganda, and Vanuatu. Three of the draft bills - those of Abkhazia, Bolivia, and Chile - refer to archival statutes.

With remarkable consistency, 20 jurisdictions have chosen to set 30 years256 as the time limit in their archival statutes to generally release records (except, usually, those records especially marked as confidential, such as for national security): Australia, Belize, Columbia, Croatia, Denmark, France, Germany, Hungary, Iceland, India, Ireland, Israel, Jamaica, Liechtenstein, Norway, Slovenia, Switzerland, Shanghai, Scotland and the United Kingdom.

Government records are (with exceptions for some topics) routinely declassified after 10 years in Latvia, 12 years in Mexico, 15 years in Lithuania, 20 years in Estonia and South Africa, and 25 years in the United States. Record creation and retention laws – apart from FOI statutes - have been common for years across the United States, and may suggest good models.

In Canada and most nations, records are primarily catalogued for the government’s convenience, not to assist FOI applicants. Yet the FOI laws of three nations - Finland, India, South Korea – set a different course. There, agencies must ensure all their records are catalogued in a way that facilitates access. The same is true for the draft FOI bills of Bangladesh, Kenya, Malaysia, Palestine and Vanuatu. Consider the statute of India:

4. Every public authority shall – (a) maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act, and ensure that all records that are appropriate to be computerized are, within a reasonable time and subject to availability of resources, computerized and connected through a network all over the country on different systems so that access to such records is facilitated [….]

In the Palestinian bill, Art. 5 requires agencies to maintain their records in ‘a manner that allows the competent staff member to easily retrieve it,’ while in Finland’s law, Sec. 18 (4), prescribes indexing to facilitate ‘effortless realization of access to the documents.’

As well, Bangladesh’s bill prescribes, in Sec. 3(3), that ‘The Information Commission shall develop guidelines on proper record keeping and management which must be followed by all bodies subject to the Act.’ All these provisions might well be advisable for Canada’s ATIA as well.

256 As a point of historical interest, Prime Minister Trudeau announced in May 1969 that 30 years after their transfer to the public archives, practically all departmental documents would be open to the public – a time shortened from 50 years – except for those whose release could harm personal privacy, national security and external relations .

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Three nations’ FOI statutes - those of New Zealand, Denmark and Poland - contain an indispensable feature: record creation. The Danish law is worth considering:

Duty to Make Notes etc. 6. (1) In any matter to be decided by an administration authority, an authority receiving information by word of mouth on facts of importance to the decision or in other manner having notice of such facts, shall make a note of the substance of such information, always provided that such information is not contained in the documents of the matter.

The draft FOI bill of Kenya prescribes the same general duty, and also includes (once again) other model provisions for Canada:

26. (1) Every public authority shall keep and maintain its records in a manner which facilitates the right to information as provided for in this Act.

(2) At a minimum, to qualify to have complied with the duty to keep and maintain records under sub-section (1), every public authority shall –

(a) create and preserve such records as are necessary to document adequately its policies, decisions, procedures, transactions and other activities it undertakes pertinent to the implementation of its mandate;

(b) ensure that records in its custody, including those held in electronic form, are maintained in good order and condition; and

(c) within no more than three years from the date that this Act begins to apply to it, computerize its records and information management systems in order to facilitate more efficient access to information.

(3) A public authority which fails to comply with sub-section (2) commits an offence.

In Japan, Prime Minister Yasuo Fukuda has been keenly interested in maintaining the archives, going so far as to establish a private advisory body to discuss ways to administer, preserve and utilize public documents. Fukuda was quoted as saying, ‘The proper administration and public exhibition of official documents is fundamental to democracy.’257

A separate topic entails the duty to create records specifically in response to an FOI request, which is an important right included in many FOI laws, including Canada’s ATIA Sec. 4(3). In some jurisdictions, records may not be destroyed after an FOI request for them has been received, even if they had already been scheduled for destruction. The FOI

257 State records need protection; Reform, awareness essential in handling public documents, by Yuko Mukai, Yomiuri Shimbun. The Daily Yomiuri (Tokyo) August 22, 2008

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statute of Ecuador commendably goes one step better, wherein information cannot be classified following a request.258

The problem of ‘oral government’ is clearly a global concern. For example, as one Scottish parliamentarian objected: ‘Practices are now in place to make sure that, even if you are successful, the information you want will not be there, they will have discussed it in places where it is not recorded or minuted and the worst offenders are the Scottish Executive.’ Scotland’s Information Commissioner Kevin Dunion said that all public authorities should change their way of working, collating all information and minuting all meetings with an eye to the FOI law.259

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Canadian commentary

• The Access to Information Act: A Critical Review, by Sysnovators Ltd., 1994:

'Recommendation 13: That section 68 of the Act be amended to eliminate the exclusion of published material from the coverage of the legislation, and that, in addition, that government institutions are required to organize, catalogue and advise the public of the existence of all government publications, including grey literature, through the inventory and government locator system described in the next section. ‘Recommendation 16: That section 5 of the Act be amended to require government institutions to organize and index their information holdings and compile and maintain in a current state an electronic inventory of these for effective decision-making and to support both active dissemination of useful information to appropriate publics and general accessibility to non-exempted documentation. (All references to accessing manuals currently in the legislation should be wrapped up into this requirement.)' • Information Commissioner John Grace, Toward a Better Law: Ten Years and

Counting, 1994:

‘The Archives Act should be amended specifically to impose the duty to create such records as are necessary to document, adequately and properly, government's functions, policies, decisions, procedures, and transactions. A duty to create records has been imposed on the United States federal government by the Federal Records Act. ‘The need to keep, at least for a time, all [email] messages on these systems stems directly from the notion of open and accountable government. To give the official who

258 http://freedominfo.org/countries/ecuador.htm 259 Secret Scotland, by Hamish MacDonell, Scottish Political Editor. The Scotsman, March 8, 2007

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created or received a message unfettered choice about its destruction would clearly jeopardize accountability.’

• Open Government Canada (OGC), From Secrecy to Openness, 2001:

‘Recommendation 24: The ATI Act should be amended to include electronically stored information (e.g. voice-mail, E-mail, computer conferencing etc.) explicitly in the definition of recorded information, and to give requesters the right to request a record in a particular format if it exists in various formats. ‘Recommendation 37: The federal government should amend the ATI Act or enact a separate law to require a clear, accurate, detailed, meaningful and useable record be created and routinely disclosed (and preserved for an appropriate period) of each government institutions’ organization, functions, policies, decisions, procedures and essential transactions to ensure that the details of each action by the institution are accessible to the public. ‘Recommendation 38: The federal government should amend the ATI Act to require all government institutions to maintain a public register listing all records, including all public opinion surveys, maintained by the institution, and all records which have been released under the law.’

• Treasury Board Secretariat, Access to Information: Making it Work for Canadians,

ATIA Review Task Force report, 2002:

‘9-1. The Task Force recommends that: a co-ordinated government-wide strategy be developed to address the crisis in information management….' 9-2. That 'training on the safeguarding, classification and designation of information in accordance with the Government Security Policy be incorporated into an integrated training package that would cover information management and Access to Information…' 9-3. That 'an effective accountability regime for information management, including the necessary audit and evaluation tools, be established and implemented within government institutions…' 9-4. That 'standards be established for the documentation of the business of government; orientation and training, and ongoing guidance in information management, be available for all employees…’

• John Reid, former Information Commissioner of Canada, model ATIA bill, 2005:

‘3. The Act is amended by adding the following after section 2: 2.1 Every officer and employee of a government institution shall create such records as are reasonably necessary to document their decisions, actions, advice, recommendations and deliberations.'

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In his 2002-2003 Annual Report to Parliament,260 Mr. Reid proposed a plan with ten key points for a new record keeping law, which is well worth contemplating. (Mr. Reid noted that some of these points are included in the Treasury Board’s Management of Government Information policy, available on TBS’ website.261

• Justice Gomery report, Restoring Accountability, 2006:

‘Recommendation 16: The Government should adopt legislation requiring public servants to document decisions and recommendations, and making it an offence to fail to do so or to destroy documentation recording government decisions, or the advice and deliberations leading up to decisions.’ (Report also advises additional 'free-standing legislation' for transparency on 'the disbursement of public funds.’)

• Government of Canada discussion paper, Strengthening the Access to Information

Act, 2006:

‘Although codifying the duty to document may not be necessary, the principle behind the proposal appears to be sound. ‘After examining how other jurisdictions have dealt with this issue, it appears that the duty could be best placed in the Library and Archives of Canada Act. In that way, the rules governing both the creation of records and their eventual disposal, which are presumably based on many of the same principles, would be brought together.’

• Bill C-556, introduced by Bloc Quebecois MP Carole Lavallée, 2008:

'2. The Act is amended by adding the following after section 2: 2.1 Every officer and employee of a government institution shall create such records as are reasonably necessary to document their decisions, actions, advice, recommendations and deliberations under this Act.’

Canadian provinces The only provincial FOI law that prescribes record management to assist applicants is that of Quebec:

16. A public body must classify its documents in such a manner as to allow their retrieval. It must set up and keep up to date a list setting forth the order of

260 http://www.infocom.gc.ca/reports/2002-2003-e.asp

261 http://www.tbs-sct.gc.ca/im-gi/imday-2002-jourgi/info/mgi-gig/page01_e.asp

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classification of the documents. The list must be sufficiently precise to facilitate the exercise of the right of access [….]

In regards to preserving records sought by FOI applicants, the access statutes of eight provinces and territories contain penalties for various wrongdoings: Nova Scotia, Newfoundland and Labrador, Quebec, the Yukon, Manitoba, Alberta and Prince Edward Island. Quebec’s law has the broadest scope, insofar that Sec. 158 prescribes that: ‘Every person who knowingly denies or impedes access to a document or information to which access is not to be denied under this Act is guilty of an offence […]’ Yet fines are picayune, ranging from $100 to $1,000; perhaps bad publicity could aid as a deterrent. Admirably, this extends beyond record alteration or destruction, potentially covering a wide range of obstructionist practices, such as those noted earlier in this chapter. The two most recently-passed FOI laws, those of Alberta and Prince Edward Island have nearly identical records preservation sections; these are the next broadest in scope after Quebec, as the only ones that forbid agencies to ‘conceal’ sought records. In PEI’s law:

75. (1) A person shall not wilfully [….] (e) destroy any records subject to this Act, or direct another person to do so, with the intent to evade a request for access to the records; or (f) alter, falsify or conceal any record, or direct another person to do so, with the intent to evade a request for access to the records. (2) A person who violates subsection (1) is guilty of an offence and liable on summary conviction to a fine of not more than $10,000.’

Only Nova Scotia and Newfoundland prescribe jail terms (both six months) - for record alteration in the former, destruction in the latter - in regards to FOI requests. In the provinces, fines for records management wrongdoings range from $100 in Quebec, $2,000 in Nova Scotia, $5,000 in Newfoundland, $10,000 in Alberta and PEI, and the daunting penalty of $50,000 in Manitoba. Regrettably, there are no provisions for record management or preservation in the FOI statutes of Ontario, British Columbia, Saskatchewan, New Brunswick and the Northwest Territories; hopefully this will change one day.

______________ In British Columbia for now, public servants look for guidance to the Document Disposal Act, which was passed in the 1930s. This Act applies only to provincial ministries, whereas it should have covered all entities, and it mandates a blanket seven year retention period for records. About five percent of the total B.C. government record output is eventually sent to the B.C. Archives, about the same proportion as that retained by the federal government.

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The B.C. information and privacy commissioner David Loukidelis wrote in 2007 that ‘lamentably, there is no across-the-board law in British Columbia requiring ministers and public servants to create and maintain full and accurate records,’ and he called for a ‘duty to create records’ law to be passed, requiring public servants to document their deliberations and decisions.262 Surely this is also needed for the federal sphere. Regarding record creation, the B.C. NDP government passed the Local Government Act in 1999 (later revised as the Community Charter), which prescribes that certain types of documents must be generated by civic councils, e.g. records of resolutions and decisions; why should we accept any less of senior government? There are myriad problems regarding record management in B.C., and many of these doubtless have federal equivalents. For example, in 2005 the provincial government initiated a highly (and ironically) secretive review of the FOI act by bureaucrats; due to the growing trend towards oral government, no written report was delivered to government by the consultant who reported on the process.263 Above, Mr. Grace suggested of the oral government problem that ‘its extent is probably exaggerated by critics of access.’ Yet startling comments by Ken Dobell, then B.C. deputy premier and head of the provincial public service, to an FOI conference in 2003, confirm one’s worst suspicions. E-mails and blackberry records must be preserved and accessible under the B.C. FOI law. Mr. Dobell confirmed that he runs the government via informal meetings or telephone conversations, seldom keeping working notes of either. He did make thorough use of e-mails - his on-line correspondence with the premier was said to be voluminous - but he said ‘I delete those all the time as fast as I can.’264

262 For the record: Why we need to know what our government is doing, by David Loukidelis. Vancouver Sun. Oct 2, 2007 263 This review of B.C. government openness of was ironic for its secrecy: any group that refused to sign a confidentiality undertaking could not take part, and government – by using the ‘policy advice’ exemption - denied my FOI request to see half of the submissions that were sent by public bodies to the review (a refusal that the B.C. commissioner is soon to rule upon). 264 Recording of panel discussion of conference marking the 10th anniversary of the adoption of the B.C. Freedom of Information and Protection of Privacy Act. Sept. 23-25, 2003, Victoria. B.C.’s information and privacy commissioner said he was initially concerned with Mr. Dobell’s statement, and raised it with him. Mr. Dobell assured and satisfied him, the commissioner later said, that he only deletes insignificant ‘transitory’ emails, not ‘important’ emails or other records, and that Mr. Dobell had written to all deputy ministers to remind them of the need to ensure that permanent records are kept. It is uncertain how widely this email retention directive is actually followed in the provincial government.

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Mr. Dobell continued that the intent is not to hide ‘necessary information’ from the media and public, but to avoid having internal e-mails caught up in media fishing expeditions. ‘I don't put stuff on paper that I would have 15 years ago . . . . The fallout is that a lot of history is not being written down. Archivists of tomorrow will look for those kinds of things, and none of it will be there. It will change our view of history.’265 Vancouver Sun columnist Vaughn Palmer echoed most of those observations:

Not long after the introduction of freedom of information legislation in B.C., a senior bureaucrat predicted the emergence of a "nothing-in-writing" style of government. Civil servants and political appointees deliver their most important advice and instructions in person or over the phone…. "Never put real policy in writing," was a laughline for politicians and journalists alike. Within a couple of years, some of the most controversial business of government was being conducted at one-on-one meetings with no notes taken, no minutes kept. Likewise, some of the most powerful officials began to disappear from written documentation, the better to exclude open-ended requests for "all memos written by or addressed to" so-and-so.266

Mr. Dobell added that fear of FOI inquiries only marginally hinders the free flow of ideas within the civil service as phone calls and informal meetings make up the gap. ‘Where FOI permits reasonable access, it’s good. Where it allows fishing expeditions and cheap research, it forces the careful handling of information.’ The term ‘reasonable’ he left undefined. It is most likely that such viewpoints are widely held at the civic, federal and international levels of government.

ACCESS TO 2010 OLYMPICS RECORD DISAPPEARS

In a good illustration of the growing trend towards ‘oral government,’ two key sources of information about the finances and management of the 2010 Vancouver Olympic Games have been abruptly cut off. Minutes are no longer being recorded of the meetings of the B.C. 2010 Olympic and

265 Former Information commissioner John Grace said some officials boast that they follow the advice supposedly given by a New York Democratic Party boss: ‘Never write if you can speak; never speak if you can nod; never nod if you can wink.’ At a recorded panel discussion at the 2003 B.C. FOI conference, Vancouver Sun reporter Jim Beatty elaborated on this idea, and explained the unwritten ‘Briefing Rule’ in Victoria: ‘The high level and professional people in government just don’t write anything down. Bureaucrats are told that “when you brief the minister, put the good stuff in notes, convey the bad stuff orally. If the information is sensitive, send it by email, if it’s more sensitive then fax it. Then talk by cell phone, and then by landline phone. It it’s most sensitive, talk only in person.”’ 266 Cynics borne out on 'new era' of information, by Vaughn Palmer. Vancouver Sun, Sept. 30, 2003

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Paralympic Winter Games Secretariat (a branch of the provincial Economic Development Ministry), the entity that politically oversees the Games. As well, until now the Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games would forward copies of its meeting minutes to the same ministry in Victoria, but now the ministry says it cannot find such records any more. (Although VANOC itself is not covered by the FOI law itself, the copies of its records it had sent to the ministry had been accessible because the ministry is covered by the law.) For news stories, I had twice obtained hundred of pages of minutes from both entities through quarterly requests under the B.C. Freedom of Information Act and Protection of Privacy Act. But in reply to my third identical attempt, I was told: ‘We have not located any records in response to your request.’ A spokesman for the secretariat confirmed to the Vancouver Province newspaper that meeting minutes are no longer taken: ‘The secretariat was keeping minutes but found they were not an effective management tool.’ He added that the secretariat’s approach to keeping records is ‘consistent with cross-government practices and legislation.’ The B.C. information and privacy commissioner’s office is investigating the loss of FOI access to the minutes.

When the minutes were obtainable, it would take five months to receive them, and about one-third were blanked out, yet what remained still gave much insight into the Games, which account for $2.5 billion of public funds.

‘The Asian Pacific Post and the South Asian Post are big supporters of the 2010 Olympic Games in Vancouver,’ the first newspaper editorialized. ‘However, the increasing secrecy surrounding the 2010 games is creating a credibility gap between VANOC and its supporters, let alone its detractors.’ • Records for 2010 Olympic Games go missing, by Stanley Tromp. The Georgia Straight (Vancouver), April 17, 2008 http://straight.com/article-141228/olympic-records-go-missing?# • Olympic secretariat meetings too secret, says Bains, by Damian Inwood. The Province (Vancouver), April 20, 2008 Even when minutes are recorded, the passage of FOI laws has led to much thought and reconsideration on just how this should be done. This was discussed in a 2004 article in a Canadian administrative journal, with a thoughtful conclusion:

The Access to Information dilemma goes like this: If you record too much detail in minutes, you could be exposing your organization to risk or exposing individuals to personal embarrassment. On the other hand, if you record too little or focus only on the decisions made, your minutes will offer very little historical

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value, when many years later people are trying to understand why certain decisions were made. […]

To address the fear that documents could be accessed by the public, consider what reasons your board may be giving to citizens to be suspicious and pursue adversarial actions against it. Access to Information legislation is yet another reason to always operate with integrity and honesty.267

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POSTSCRIPT

RECORD ACCESS PROBLEMS IN AUSTRALIA AND NEW ZEALAND

Senior public servants are avoiding potentially embarrassing FOI requests by briefing colleagues, ministers and staffers verbally rather than in writing.

Community and Public Sector Union national secretary Stephen Jones said public servants were increasingly reluctant to email sensitive information or commit it to print for fear the information could find its way into the public domain, embarrassing the minister and damaging the employee's career prospects.

Mr. Jones said the pressure to avoid a paper trail tended to come from the minister's office, often via advisers. ‘'If it comes from the minister's adviser, there's often plausible deniability that it wasn't the minister ... that initiated the contact or the direction,’' he told The Australian.

His remarks echoed the observations of Treasury secretary Ken Henry, who said FOI requests that were 'motivated by a desire to either embarrass the Government and Treasurer or the department' had led to a situation where communication was oral, rather than written.

Australian National University professor John Wanna said that although some public servants had been ordered by ministers to brief verbally, others had simply ‘'read the tea leaves . . . (They) think: “Well, if I want to survive in the public service I best not have long trails of email”.’ He said the practice gathered pace under former prime minister Paul Keating, who used oral briefings as a way of limiting the circulation of sensitive information.

267 The public may be able to see your minutes, by Eli Mina, Administrative Assistant's Update, Jan. 1, 2004

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- From Bureaucrats use word of mouth to avoid paper trail trap, by Paul Maley and Chris Merritt. The Australian, November 6, 2007

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The growing number of electronic records is making it increasingly difficult to answer official information requests, says New Zealand deputy ombudsman Leo Donnelly. He says the problem is not that information is stored electronically, but that the systems are inadequate: ‘The real issue is that the systems for creating and maintaining records often haven't kept pace.’

Failure to adequately answer FOI requests could create mistrust among the public. ‘It can create suspicion if the information that people expect or think is going to be there isn't.’ But people need to be realistic about what information is accessible. ‘Not all requesters understand that their requests cover an enormously wide range of information.’

His comments echo those of Commonwealth Ombudsman in Australia, Professor John McMillan, who says governments administering FOI laws now face a major challenge in managing both paper documents and electronic files.

Electronic information raises other issues, such as whether deleted documents and e-mails on back-up systems should be available as records under FOI laws. Mr. McMillan said retrieval of backed-up records can be time-consuming and expensive, raising the question as to who should bear the cost. ‘Governments are concerned, but there are no easy answers. If we excluded a document from the scope of freedom of information acts then that creates the opportunity for abuse.’

- From Records systems 'lacking,' by Claire McEntee. The Dominion Post (Wellington, New Zealand), December 17, 2007

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Chapter 10 ~ ‘If it takes forever. . . .’

Response Times

How are response times and delays dealt with in the FOI law?

If ‘justice delayed is justice denied,’ than news delayed is news denied. By deferring the release of records through the FOI system, officials calculate - often correctly, sadly enough - that editors will spurn them as ‘old news’ and therefore not worth publishing. (Yet one might still consider a maxim from legendary American news editor Heywood Broun: ‘For the truth, there is no deadline.’) This has surely led over the years to the loss of hundreds of potential news articles in the public interest that were essentially ‘spiked’ - a news industry term - by the state.268 No applicant without an uncommon degree of patience and endurance can prevail, and the legal odds are always stacked against him or her. For example, the applicant has just 60 working days to appeal an ATIA refusal, and if that deadline is missed there is no second chance. By contrast government routinely breaks its own deadlines with impunity; there are no penalties for delays, as there needs to be, which stands at variance with other nations’ FOI laws (see below).269 Under the Access to Information Act, public bodies must respond to requests within 30 days, and may extend this for another 30. Yet several recent requests under the ATIA have been returned to applicants with a notice that they require delays that amount to three times the average of prior years, making data outdated and often useless when it is released.

Users of the legislation have found the average wait time for release has risen sharply from 30 to 60 days two years ago to 150 or much more over the past year. Some

268 This reality was noted by the current Information Commissioner: ‘I know how crucial a consideration time is for you. After all, what you produce is called “news” for a reason. If you can’t get the information you need easily in the first place and then your access to information request or complaint gets handled after a story has faded from the public attention, the information you seek loses much, if not all, of its news value to you.’ - Robert Marleau, Speech to Canadian Association of Journalists (CAJ) luncheon, Ottawa, Feb. 27, 2008

269 There are surely other options. ‘An interesting phenomenon to observe in countries where access to information legislation is firmly established, such as the Netherlands or Sweden, is that government officials act in the spirit as well as the letter of the law. In practice, the formalities for requests for information are often waived and the information provided without delay.’- Public Access to Environmental Information, by Ralph E. Hallo, Netherlands Society for Nature and Environment. Report for the European Environment Agency (EEA), 1997. http://reports.eea.europa.eu/92-9167-020-0/en/page001.html

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departments, such as Defence and Foreign Affairs, are so backlogged that they automatically add extensions of more than 100 days to most, if not all, requests. Other agencies coolly grant themselves a 240 day extension - triple the previous average. In the ATIA, the reply may be extended for an unspecified “reasonable period of time.” Some applicants might inaccurately attribute delays to overworked FOI staff, who generally try their best, but more often the problem originates elsewhere, such as with the ‘program area’ in which the records must be found, which can be located in another office or city. The final and worst bottleneck is usually the official - sometimes the deputy minister, as the ‘head of the public body" - who must ‘sign off’ on the records before they can be sent out, whenever he/she can find the time to do so; ‘We're too busy,’ is the general excuse.

Information Commissioner Robert Marleau has stated that the government's own statistics show that responses to the public's requests for information are slowing down ‘across the board.’270 Most troubling, the number of complaints to the Commissioner has doubled over the past year. ‘A silent, festering scandal’ is how former Information Commissioner John Grace described systemic delays in his 1997 annual report.271 In the decade since then, the problem has become worse and has now reached a true crisis level. ‘I've never seen it so bad. I consider the [ATIA] system paralyzed for all intents and purposes,’ said Ottawa lawyer Michel Drapeau.272

One major reason is that, as users of the system note, ‘Prime Minister Stephen Harper's government has imposed so many new layers of scrutiny that even the most benign material gets fetched up in reviews for months, even years.’273 (In reply to my last ATIA request, it took nine months to obtain 20-year-old cabinet meeting minutes.)

270 Access requests bogged down by PM's officials, by Campbell Clark. The Globe and Mail. Toronto, Ontario. Dec 24, 2007. Yet in his 2007-08 Annual Report, the Commissioner made a public commitment to eliminate the historical backlog by the end of the 2009–2010. He noted that he is trying new methods to reduce delays, such as a different report card system. As well, ‘We will no longer keep investigations open until such time as institutions provide final responses to requesters. When a reasonable target date can be established in a particular set of circumstances, we will consider the complaint resolved, monitor its progress and follow up where necessary. Should the institution not meet its target date, we may initiate our own complaint or the requester may do so on the basis that he or she has become aware of new grounds on which to complain.’ 271 Information Commissioner John Grace, 1996-97 Annual Report. Ottawa. He added: ‘Most surprising - and dismaying - about the whole delay problem is that the Act already contains one of the most liberal extension-of-time provisions found in any freedom of information statute. … There simply is no basis to the oft-heard cry that the time frames are unrealistically short or set without concern for shrinking departmental resources.’ 272 Information access system hobbled; Commissioner sees 'real frustration' as complaints rise about delays, officials' attitude, by Les Whittington, Toronto Star. May 28, 2008 273 Government stymying efforts to obtain information: critics. Telegraph-Journal, Saint John, N.B.: Jan. 7, 2008.

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The extensions are linked in part to additional checks by the Privy Council Office, which advises the Prime Minister and Cabinet, and which now reviews most requests filed with the government. The possible illegality of this process must be examined, for if the PCO does not have ‘a greater interest’ in a request, it has no statutory right to hold it up. Offices also claim they need to consult with multiple departments before releasing material, which further extends the process.274 There can be disputes over who ‘controls’ a document, said Mr. Marleau. After the PCO vetting, the government can then improperly delay the ATIA reply for weeks longer as its public relations branch toils on a pre-release ‘issue management’ and ‘spin control’ plan.275

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This September, an investigation by the information commissioner concluded that ATIA requests documents labelled as ‘sensitive’ are indeed subject to unwarranted delays by government institutions. The probe was launched in 2005 after the Canadian Newspaper Association asked the watchdog to probe whether there were ‘secret rules’ for processing media requests, which led to delays in releasing documents.276

‘While we were unable to conclude on the basis of our investigation that there exists 'secret rules' or a government-wide systematic practice specifically directed against each media request, or the media in general, we did conclude that there was some merit to the second part of the CNA's complaint about unfair and unjustifiable delays,’ Mr. Marleau wrote in his report, but there is nothing illegal in the practice, he added. Contrary to the Commissioner’s belief, journalist Fred Vallance-Jones concluded, after analyzing the statistics - that ‘The evidence suggests that media requests are delayed as a matter of routine. Even when they are not “sensitive,” they take longer.’

Among the commissioner's recommendations was a request that the heads of 21 government institutions no longer delay the processing of documents with labels that may

274 Getting information from feds taking ages, by Alison Auld. The Spectator. Hamilton, Ontario. Jan. 7, 2008 275 In briefing notes prepared for Treasury Board president Vic Toews in May 2008 to help him counter criticisms, bureaucrats say 60 per cent of complaints filed with Mr. Marleau were made by just 10 people. - Information buff hounds CBC; One person filed hundreds of queries under access law, by David Akin. The Ottawa Citizen. July 11, 2008 276 'Sensitive' access requests delayed: investigation. No secret rules for media, commissioner says, by David Wylie, Ottawa Citizen, Sept. 4, 2008. Scott Anderson, senior vice-president, content for Canwest Publishing Inc., said the ruling was a very positive development for the public's right to know. ‘It's not hard to imagine that issues that need the most exposure are the ones governments would like to keep under wraps,’ he said. ‘This ruling means that so-called 'sensitive' requests for information must be dealt with the same way innocuous requests are. No more playing for time in the hopes the issue will die and the journalist will go away.’

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suggest a need for ‘special handling.’ Mr. Marleau said the institutions had agreed to abide by his recommendations. Time will tell.277

Bureaucrats strongly disinclined to transparency are emboldened by the anti-transparency message from the highest political levels in Ottawa. Yet access coordinators are sometimes unfairly blamed when the fault for delays lies elsewhere. As the Commissioner noted, ‘What I'm getting from the ATIP co-ordinating community right now is, 'What can you do to help us, get this consultative process to accelerate? Because we're getting the blame, we're getting an 'F' for the department, when the consultation process, over which we have no control, takes an awful lot of time. They feel that time is increasing, and that consultation with PCO is taking longer than it used to.’278 Besides the problems of official resistance, passive-aggression, or indifference to FOI deadlines, there is another, more structural issue that seems as immutable as a law of nature: A week is a long time in journalism (and politics), but a year is a short time in government. Both parties move to very different speeds and rhythms, and often seem unable to understand the other’s time culture. This is, of course, a recipe for perennial frustration and conflict, and with long-overdue requests, the applicant or Commissioner is compelled to repeatedly call on the public body like a collections agency, a far from pleasant situation for all concerned. Public servants may regard the situation as unjust as chastising an elephant for not keeping pace with a cheetah; while some others might consider that the only solution is to try to meet each other part way. In regards to solutions, the Commissioner’s office stated it ‘is committed to undertaking thorough, fair and timely investigations of complaints’ made against federal institutions under the ATIA and ‘reviews the overall performance of these institutions by way of report cards.’ (In Chapter 3, we advised that the ATIA be amended to grant the commissioner order making power on delays.)

Public relations staff need not be prohibited from being informed about ATIA requests, per se (in reality this could likely not be stopped anyways), but only if this process does not cause delays. As well, the applicant’s identity must not be revealed within government, a practice that has egregiously occurred lately and which violates the Privacy Act.

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277 There is another needed reform. As Prof. Roberts inquired, ‘Customers can now track the progress of their UPS parcel deliveries online, so why not their FOI requests too?’ Speech to FIPA, Oct. 1, 2008. op.cit. 278 Campbell Clark, op.cit.

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• Canada’s Access to Information Act, 1982:

In Sec. 7, the head of government institution must reply to ATIA requestor in writing within 30 days (subject to Sec. 8 and 9) after the request is received. This time limit may be extended for two reasons: First, government may (per Sec. 8) transfer the request to another government institution that has a ‘greater interest’ in the record, within 15 days of receiving it, and so notify the applicant of the transfer in writing. The head of the other institution must reply within the remaining 15 days. Secondly (per Sec. 9), the reply may be extended ‘for a reasonable period of time’ - which is unspecified; in practice it can last months or even years – with no specific penalties or sanctions - if many records must be search, consultations are required, or third parties must be notified by law. In such cases, the applicant and the Information Commissioner must be notified of any extensions within 30 days. (The next sections of the ATIA describe third parties’ rights to oppose release, and the time limits for those.) Hopefully, coordinators might try to work with the applicant to reduce the request’s scope and hence save time.

2006 amendment to ATIA:

‘Right to access to records. 4. […] (2.1) The head of a government institution shall, without regard to the identity of a person making a request for access to a record under the control of the institution, make every reasonable effort to assist the person in connection with the request, respond to the request accurately and completely and, subject to the regulations, provide timely access to the record in the format requested.’

• Bill C-470, An Act to amend the Access to Information Act (response time), was introduced in the House on October 30, 2007, and stands at first reading as of June 2008. The Bill provides for a report to be given to the requester and the Office of the Information Commissioner explaining the delay and the projected completion date when a request is still outstanding 100 days after it was received. With this notice, the requester could decide to engage in the complaint procedure earlier or could decide to wait, depending on the explanation and the projected completion date. It would allow the Office to monitor the frequency with which federal institutions are late in responding to access requests.

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Global Commentary

• Article 19, Model Freedom of Information Law, 2001:

‘9. (1) Subject to sub-section (3), a public or private body must respond to a request for information pursuant to section 4 as soon as is reasonably possible and in any event within 20 working days of receipt of the request.

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(2) Where a request for information relates to information which reasonably appears to be necessary to safeguard the life or liberty of a person, a response must be provided within 48 hours.

(3) A public or private body may, by notice in writing within the initial 20 day period, extend the period in sub-section (1) to the extent strictly necessary, and in any case to not more than 40 working days, where the request is for a large number of records or requires a search through a large number of records, and where compliance within 20 working days would unreasonably interfere with the activities of the body.

(4) Failure to comply with sub-section (1) is deemed to be a refusal of the request.’

• Commonwealth Secretariat, Model Freedom of Information Bill, 2002:

‘16. A public authority shall take reasonable steps to enable an applicant to be notified of the decision on a request (including a decision for deferral of access under section 21) as soon as practicable but in any case not later than thirty days from the date on which the request is duly made.’

• Council of Europe, Recommendations on Access to Official Documents, 2002:

‘A request for access to an official document should be dealt with promptly. The decision should be reached, communicated and executed within any time limit which may have been specified beforehand.’

• Open Society Justice Initiative, Access to Information, Monitoring Tool Overview,

2004:

‘5. Information shall be provided in a timely fashion. The Justice Initiative surveyed 44 FOI laws from around the world, and found that the average timeframe for providing information was 17 working days, with some countries’ laws permitting extensions for complex requests....

11. The refusal should be made in writing within the timeframes specified by law (where specific timeframes for refusals are given) or, at the latest, within the timeframe for providing information.’

• Organization for Security and Co-operation in Europe (OSCE), Access to

information recommendations, 2007:

‘Public bodies should be required in law to respond promptly to all requests for information. Requests for information that are time-sensitive or relate to an imminent threat to health or safety should be responded to immediately.’

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Other nations FOI laws of most other nations take a very different approach to time responses than does the ATIA. A response time of two weeks is the global average, and the public and media in other states would not tolerate the delays of months or even years that polite Canadians have passively come to accept as inevitable. At least 60 other FOI jurisdictions in the world mandate shorter timelines than in Canada. For the average Canadian journalist awaiting ATIA responses seemingly forever, receiv-ing records in legislated deadlines of three, seven or 10 days would be a utopian dream.279 In Norway, internal guidelines issued by the Ministry of Justice say that requests should be responded to in three days. The Norwegian Ombudsman in 2000 ruled, ‘It should be possible to decide most disclosure requests the same day or at least in the course of one to three working days, provided that no special, practical difficulties were involved.’280 Why should such a time in theory be less possible in many other nations for an initial FOI determination (although not necessarily a full reply)? FOI delays have been a problem in the United States as well, but the issue has been tackled. Last year the Senate passed Bill S.849, the Open Government Act of 2007, which puts some teeth into the statutory mandate that an agency must respond to a FOIA request within 20 days; in the U.S. there had previously been no statutory penalty for agency delay in responding to a request, and Canada still lacks one. Because the wording in some foreign FOI statutes is ambiguous (e.g., on the distinction between a request being ‘answered’ or ‘processed’), I just cite them below as printed from available translations: • FOI requests must be ‘processed’ in seven days in Iceland, 10 days in Columbia, and 30 days in Israel and in the Russian Federation’s draft FOI bill. • Requests must be ‘complied with’ in five days in Estonia; and ‘acted on’ in 15 days in the Philippines, and 20 days in Lithuania.

279 For instance, when regarding the draft FOI bill of Kyrgystan with its deadline of 30 days to respond to a request, which can be extended for another 30 days (the same limit in the Canadian ATIA), the organization Article 19 noted that ‘this time frame is far longer than international standards.’ - Comments on the Kyrgyz Republic Draft Law on the Freedom and Guarantees of Access to Information, by David Banisar, director, Freedom of Information Project of Privacy International, 2005 http://www.article19.org/pdfs/analysis/kyrgyzstan-foi-06.pdf 280 http://freedominfo.org/countries/norway.htm

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• Information must be ‘provided’ in three days in the draft FOI bills of Guatemala and Paraguay281; five days in Armenia; 10 days in Chile’s draft FOI bill; 14 days in Belize and Bulgaria; 20 days in Antigua; 30 days in Albania, Belgium and Germany; 60 days in Austria. • Requests must be ‘decided’ in eight days in Montenegro, and 15 days in South Korea and the Guangzhou municipality of China.

The public body must ‘answer’ or ‘respond to’ or ‘reply to’ a request:

• ‘immediately’ in Georgia • three days in Norway • seven days in Peru and the draft FOI bill of Nigeria • 10 days in Argentina, Denmark, Ecuador, Macedonia, Portugal, Romania, Slovakia, Ukraine, Indonesia, and Iran282 • 14 days in Finland, the Netherlands, Poland, Mongolia, and the draft FOI bills of Sri Lanka and St. Kitts and Nevis • 15 days in Bosnia and Herzegovina, China, Shanghai municipality, Croatia, Czech Republic, Hungary, Kosovo, Latvia, Moldova, Serbia, Turkey, and the draft FOI bills of Kenya and Palestine

281 Article 19 had misgivings about this three day deadline: ‘While short timeframes are to be promoted, at the same time excessively short timeframes may actually undermine implementation of the law. For example, officials will have to consider whether requested information falls within the scope of an exception. Three days may be insufficient for this purpose. If officials are unable to keep up with these timeframes in practice, they will constantly be operating in breach of the law, undermining its legal quality. As a result, short but realistic timeframes are to be preferred.’ - Memorandum on the draft Paraguayan Free Access to Public Information Law, by Article 19, London, 2004 http://www.article19.org/pdfs/analysis/paraguay-access-to-information-feb-2004.pdf

282 According to a report of Iran’s FOI law passed in May 2008, ‘the public or private institution must respond to the request for access to information in the shortest possible time and in any case, the time for the response cannot exceed 10 days once the request is received.’ - Approval of 10 articles of the bill for Freedom of Information: The seventh Majlis votes for Khatami's government's last bill, published by the Iranian newspaper E'temad-e Melli on May 8, 2008.

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• 20 days in Antigua, Mexico, New Zealand, Slovenia, Switzerland, Tajikistan, the United Kingdom, the United States283, and the draft FOI bills of Bolivia, the Cook Islands and Sierra Leone • 21 days in Pakistan, Uganda, and the draft FOI bills of Nepal and Tanzania • 30 days in Australia, Ireland, Italy, Jamaica, Japan, Panama, South Africa, St. Vincent and the Grenadines, Trinidad and Tobago, Uzbekistan, Zimbabwe, and the draft FOI bills of Fiji, Ghana, Guyana, Jordan and Kyrgyzstan • 90 days in Spain In most of these FOI laws, short extensions are allowed for processing complex requests.

______________ There are other time response features in FOI laws, several of which could be considered for a reformed ATIA, perhaps in modified forms: • In at least nine countries, the public body must provide information within 48 hours ‘to safeguard the life or liberty of a person’ (or some variant of this phrase) - in the FOI laws of Antigua, India, Montenegro and Serbia; and the draft FOI bills of Guatemala, Kenya, Maldives, Mongolia, and Sierra Leone. To that term, the Mongolian bill in Sec. 14.3 adds the protection of ‘the legitimate rights and interests of a person.’ In Nepal, there is an obligation on public bodies to provide information relating to the defence of human life within 24 hours. • In Belgium, the law also includes a right to have the document explained. • In the Netherlands, recommendations of advisory committees must be made public within four weeks. • In Romania, ‘The information of public interest requested verbally by the mass media shall be communicated, as a rule, immediately, or in maximum 24 hours’ time.' • In Mexico, agencies must respond to requests in 20 working days, which may be extended for another 20. Then, in Art. 53, ‘Lack of response to a request for access within the time limit indicated in Art. 44 will be understood as an acceptance of the request, and the agency or entity is still required to provide access to the information within a time period no greater than ten working days, covering all costs generated by the reproduction

283 Twice, the same types of records that would have taken Canadian governments months to process by FOI were sent to me by American states as scanned email attachments overnight.

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of the responsive material, except when the Institute determines that the documents in question are classified or confidential.'

• In Armenia, ‘Oral requests are required to be responded to immediately.’

• In Mozambique’s draft FOI bill, Sec. 8 prescribes that requests shall be fulfilled within 10 days. If not, the applicant may complain to the ombudsman, who can choose to order the agency to grant the record within another 10 days. Then, if that does not succeed, in Sec. 8(4), ‘Failure to satisfy the request within the deadline set in the previous paragraph shall constitute the crime of qualified disobedience, and the Ombudsman shall institute the relevant criminal proceedings.’

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Canadian commentary

• Open and Shut, report by MPs’ committee on Enhancing the Right to Know, 1987:

‘6.12. The Committee recommends that the initial response period available to government institutions be reduced from thirty days to twenty days, with a maximum extension period of forty days, unless the Information Commissioner grants a certificate as to the reasonableness of a further extension. The onus for justifying such extensions shall be on the government institution.’

• The Access to Information Act: A Critical Review, by Sysnovators Ltd., 1994:

‘Recommendation 98: That section 9 of the Act, extension of time limits, be amended to restrict the delegation of granting time extensions to a senior official, perhaps Assistant Deputy Minister level, with the hopes of increasing the accountability for performance by institutions.’

• Information Commissioner John Grace, Toward a Better Law: Ten Years and

Counting, 1994:

‘It is as if government has decided that the right to a timely response is not an important right and can be ignored with impunity. . . . One remedy is to ensure that when a department's response falls into deemed refusal (i.e., failure to meet lawful deadlines) there are real consequences. One consequence might be loss of the right to collect fees (including application fees and any search, preparation, and photocopying charges). . . . There is no reason why requesters should pay anything for poor service.

‘Perhaps a more mind-focusing sanction would be to prohibit government from relying upon the Act's exemption provisions to refuse access if the department is in a deemed refusal situation.’

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[On Section 26] ‘First, the period of grace now stipulated in the section - 90 days - is unnecessarily long. Sixty days is ample time given modern printing methods; the Act should be amended to reduce the grace period. Second, the provision has been relied upon as a device to buy extra time. An institution may receive a request for a record, deny the request on the basis of section 26 and, when that period expires, change its mind about publication and simply apply exemptions to the record. Section 26 should be amended to prevent such abuse by stipulating that if the record is not published within the 90 days (or 60 days as recommended) it must be released forthwith in its entirely with no portions being exempted.’

• Information Commissioner John Reid, Blueprint for Reform, 2001:

‘It is recommended that the Act be amended to preclude reliance upon sections 21 and 23 in late responses.

‘It is recommended that section 9 be amended to provide that no extension of time may exceed one year without the approval of the Information Commissioner. Further, it is recommended that section 31 be amended, to give the Commissioner discretion to extend the one-year period within which a complaint must be made.

‘It is recommended, therefore, that section 72 be amended to require government institutions to report each year the percentage of access requests received which were in “deemed refusal” at the time of the response and to provide an explanation of the reasons for any substandard performance.’

• Open Government Canada (OGC), From Secrecy to Openness, 2001:

‘Recommendation 31: The ATI Act should be amended to prohibit the use of any of the discretionary exemptions if the response time limits in the law are exceeded.

‘Recommendation 32: The ATI Act should be amended to prohibit the charging of any fees if the response time limits in the law are exceeded.

‘Recommendation 33: The ATI Act should be amended to prohibit extensions of the response time limits in the law beyond one year without the permission of the Information Commissioner, and to permit complaints about delays beyond one year with the permission of the Information Commissioner.

‘Recommendation 34: The ATI Act should be amended to require government institutions to report annually the percentage of requests received which were not responded to within the response time limits in the law, and to provide reasons for the delays.’

• Treasury Board Secretariat, Access to Information: Making it Work for Canadians,

ATIA Review Task Force report, 2002:

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‘5-6. The Task Force recommends that Paragraph 9(1)(a) of the Act be amended to permit an extension of the time for responding to a request if “meeting the original time limit would unreasonably interfere with the operations of the government institution”. ‘5-7. That Access to Information Coordinators be encouraged to offer to release information to requesters as soon as it is processed, without waiting for the deadline, or for all of the records to be processed.' [....]

• Bill C-201, introduced by NDP MP Pat Martin, 2004:

C-201, on sec. 26: change to 60 days (s. 19)

• Canadian Newspaper Association (CNA), In Pursuit of Meaningful Access to

Information Reform, 2005:

‘Recommendation 13. Delay is particularly injurious to journalism and has been used to “kill” or frustrate investigative projects. The powers of the Information Commissioner must be enhanced to enforce compliance with statutory response times. The Commissioner should be empowered to compel the resolution of complaints involving unjustified delays, whether by sanction or by compelling the production of non-exempt documents.

‘Recommendation 14. No more than two extensions of the statutory 30-day period for compliance should be permitted, and in no cases without good reason; extensions beyond 90 days should be permissible only on application to the Commissioner.’

• Justice Gomery report, Restoring Accountability, 2006:

‘It endorses limiting the Government’s authority to extend the initial 30-day default response period to instances of necessity. Where a government institution fails to respond within the time limits, a provision should state that this delay is deemed to be a refusal of the request, and the Government institution must give notice of the refusal to the applicant and to the Information Commissioner.’

• British Columbia Freedom of Information and Privacy Association (FIPA), 2008:

‘Some equivalent to the British Columbian information and privacy commissioner’s new ‘consent order’ and ‘expedited inquiry’ process to curtail delays, could be considered for the ATIA system. ‘To lessen overall response times, public bodies must give records to the applicant in staged releases if he or she requests it. ‘”‘Sign off’ authority levels and processes must be streamlined and simplified. ‘The ATIA should be amended to grant the commissioner order making power on delays.

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‘Failures to respond would be reflected in the reduced remuneration and bonuses of the head of the public body responsible for ATIA compliance (such as deputy ministers). ‘The government should release as much information proactively and routinely as possible, in preference to the ATIA system.’ [See chapter 12.] • Bill C-556, introduced by Bloc Quebecois MP Carole Lavallée, 2008:

‘6. Paragraphs 9(1)(a) and (b) of the Act are replaced by the following:

(a) meeting the original time limit would unreasonably interfere with the operations of the government institution and the request

(i) is for a large number of records, (ii) necessitates a search through a large number of records, or (iii) is part of a group of requests for a large number of records made by the same

person on the same subject within a period of 30 days, (b) consultations with other government institutions are necessary to comply with the request and cannot reasonably be completed within the original time limit,’

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Canadian provinces A reformed ATIA would do very well to follow the FOI law of Quebec, where the public body has 20 days for an initial reply, with the right to extend for 10 days more. Then, in Sec. 52, ‘On failure to give effect to a request for access within the applicable time limit, the person in charge is deemed to have denied access to the document.’ For the most part, however, the provinces match the ATIA, with 30 days for an initial reply and 30 more for an extension, regrettably changed from ‘calendar days’ to ‘working days’ in British Columbia. Worse, in three FOI laws - those of Ontario, the Yukon, and the Northwest Territories - public bodies may extend the initial deadline for a ‘reasonable’ time, a phrase that could denote virtually anything to anyone. Manitoba allows the applicant four months to appeal, and Saskatchewan one year, compared to the 60 days in the ATIA (which was shortened from one year). As noted, in November 2006 the B.C. information and privacy commissioner created a new ‘consent order’ and ‘expedited inquiry’ process to curtail delays,284 which works effectively today, and some equivalent of this could be considered for the ATIA system.

284 http://www.oipc.bc.ca/advice/PoliciesProceduresRevised(Nov2006).pdf

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As well, two provincial FOI laws, those of Ontario and Alberta, permit so-called ‘standing’ or ‘rolling requests,’ which is helpful for, say, a journalist who would file quarterly requests for the minutes of closed meetings at city hall. These provisions of Alberta’s law, below, would be advisable for the ATIA as well:

Continuing request. 9(1) The applicant may indicate in a request that the request, if granted, continues to have effect for a specified period of up to 2 years. (2) The head of a public body granting a request that continues to have effect for a specified period must provide to the applicant (a) a schedule showing dates in the specified period on which the request will be deemed to have been received and explaining why those dates were chosen, and (b) a statement that the applicant may ask the Commissioner to review the schedule. (3) This Act applies to a request that continues to have effect for a specified period as if a new request were made on each of the dates shown in the schedule.

FOI DELAYS IN AUSTRALIA c/c CANADA

Of course, FOI delay strife is not limited to Canada. ‘Rather than taking a practical approach, some agencies have now engaged in a game of tactics,’ wrote one Australian journalist. ‘The objective is to discourage the applicant by maximising costs and extending the processing time. One strategy is to include all conceivable documents that could come within the terms of the application, advise of the need to consult with all involved and claim that they will have to spend considerable time and effort in processing the application.’

- FOI stripped and beaten, by John Doyle, The Courier Mail (Australia), Sept. 4, 2006 In the Australian state of Victoria, a year after the state ombudsman delivered a report on government departments' failures on FOI, no action has been taken to reduce the long, 45-day limit on responding to requests for documents. In fact, departments will get an extra 30 days to answer more complicated requests that deal with third parties, such as private businesses. On his first day as premier, John Brumby said Victoria has chronic delays in its handling of FOI requests, despite having the longest time (45 days) to process them. The federal Australian time limit is 30 days and New South Wales has a 21-day limit. [For many Canadian ATIA applicants a reply in 45 days would be a rare event indeed.]

- Limits in FOI moves. Editorial, The Canberra Times (Australia), Nov. 24, 2007

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Chapter 11 – Conflicts of Laws

FOI and Other Laws

Should other laws override an FOI statute on information release for

certain subjects, or visa versa?

‘A Conservative government will: Ensure that the disclosure requirements of the Access to Information Act cannot be circumvented by secrecy provisions in other federal acts, while respecting the confidentiality of national security and the privacy of personal information.’

(Promise not fulfilled.)

Conservative Party of Canada, election promise, 2006

______________ The relationship of a transparency statute to other laws is a complex topic that can easily elude the radar, for when a conflict of laws arises on such a score, it may appear as an obscure, unimportant technicality.285 FOI laws are designed to contain enough exemptions to prevent the harms that the secrecy clauses in other laws profess to avert, making those other laws’ provisions redundant and illogical at best, deleterious at worst. Passing secrecy provisions in other acts to override an FOI statute can give rise to a confusing patchwork of laws, for in such provisions, the withholding of the information might be mandatory or discretionary; with a harms tests, time limits, a public interest override and appeal routes – or, more often, without any of these features. The problem really is acutely important, for Sec. 24 of the Canada’s Access to Information Act prescribes that an agency must refuse to disclose any information requested under the ATIA that is restricted by dozens of other statutes, as set out in Schedule II of the ATIA. Unchecked, the number of listed statutes could grow still further today, a practice that former Information Commissioner John Reid has well described as ‘secrecy creep,’ while his predecessor John Grace called Sec. 24 ‘the nasty little secret of our access legislation.’ Sec. 24 violates the goal of the ATIA as stated in Sec. 2(1), which is to make government more accountable to the public and to provide a right of appeal, as well as Sec. 4 (1), which gives the ATIA primacy over other acts of parliament.

285 In British Columbia, for example, aware that amending the FOI law directly would alert the media and FOI advocates, the government sometimes quietly inserts new secrecy provisions (consequential amendments) that override the FOI law to other statutes in a Miscellaneous Statutes Amendment Act, an old legislative ruse utilized to evade notice that is less successful now than previously.

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Today there are more than 50 other statutory provisions in other laws that override the ATIA. These include the Competition Act, Criminal Code, Canada Elections Act, Canadian Environmental Assessment Act, DNA Identification Act, Hazardous Products Act, Nuclear Safety and Control Act, Railway Safety Act, and the Statistics Act. Most of these are intended to protect business secrets and personal privacy, but such provisions are entirely unnecessary because the exemptions in Sections 20 and 19, respectively, of the ATIA provide ample protection for these interests. Sec. 24 is a mandatory and so-called ‘class’ exemption: once the government decides that a record contains information of a kind contemplated in one of those other provisions, the agency has no choice but to refuse its release. However, very few of the other provisions by their own terms absolutely bar disclosure; they usually only ‘restrict’ it in some way. Indeed, most grant some measure of discretion to an official to determine whether to release information - usually to other government officials or to the person who provided the information. As one expert notes, ‘This varying degree of discretion fits awkwardly within a mandatory class exemption.’286 Sec. 24 also violates the principle of independent review. The scope of the Information Commissioner’s review of government refusals to release records under this exemption is quite narrow. In investigating this refusal, all the Commissioner can do is to determine whether or not the disclosure is subject to some other statutory restriction. If it is, then even if the disclosure would likely cause no identifiable harm, it must be withheld nonetheless. This prescription must be followed even if the other statute merely restricts, but does not categorically bar, disclosure. The ATIA gives the Information Commissioner no authority even to recommend that the discretionary power included in the other statute be applied in favour of disclosure in appropriate circumstances. The rights of an ATIA applicant to appeal such a discretionary decision through judicial review are also extremely limited.

______________ The original version of the Act should be considered, and its progressive features incorporated into a reformed ATIA. In 1979 the Progressive Conservative government introduced Bill C-l5, the proposed Freedom of Information Act. The bill contained a mandatory exemption (Sec. 25) which provided that records must be withheld if they contained information ‘required under any other Act of Parliament to be withheld from the general public or from any person not legally entitled thereto.’ As noted in the 1987 Open and Shut report:

286 Standing Committee on Justice and Solicitor General on the Review of the Access to Information Act and the Privacy Act, report: Open and Shut: Enhancing the Right to Know and the Right to Privacy. Ottawa: Queen’s Printer of Canada, 1987

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However, this potentially vast exemption was explicitly made subject to certain conditions if the other Act of Parliament provided the duty to withhold information in such a manner as to (1) leave no discretion or (2) set out particular criteria for refusing disclosure or (3) referred to particular types of information to be withheld, then the exemption in the Freedom of Information Bill applied. If one of these conditions was not satisfied, then the record could not be refused under this particular exemption.287

This approach taken in Bill C-15 was virtually the same to one that had been passed when the United States Freedom of Information Act was amended in 1976. When Bill C-43 was introduced by the Liberal government in 1980, it in turn copied the pertinent section of Bill C-l5 verbatim. But in 1981, amendments resulted in Schedule II appearing in the Bill for the first time, and the Bill was then altered to emerge as the present flawed Access to Information Act. The Minister in charge of shepherding the ATIA’s passage noted, however, that it was the task of a future parliamentary committee to review each of the provisions noted in Schedule II and recommend ‘whether or not they ought to stay in the law.’ It was anticipated that some of those provisions might be found no longer to merit the type of protection they had been granted by previous parliaments. The parliamentary committee that reported in Open and Shut advised that the Department of Justice undertake an extensive review of these other statutory restrictions and amend their parent acts in a manner consistent with the ATIA. But nothing significant changed. The United Kingdom also allows several other statutes’ provisions to override its FOI law. Yet in one recent report, the UK’s Department of Constitutional Affairs (in charge of implementing the law) identified 381 other pieces of legislation that limit the right of access under the FOI act, and it has committed to repealing or amending 97 of those laws and reviewing a further 201.288 Canada should do likewise with the ATIA. Resolving this problem seems not a high priority in Canada because statesmen perceive that there will always be other far more urgent political priorities than the harmonization of principles in domestic statutes, to avert conflict of laws disputes that might never arise.

The best solution is straightforward, as noted in the commentaries below: Repeal ATIA Sec. 24 and Schedule II, and prescribe all government information release policies and practices within the ATIA text. The federal government should commit to bring all laws relating to information into line with the principles underpinning the ATIA.

287 Open and Shut, ibid

288 http://www.freedominfo.org/countries/united_kingdom.htm

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• Canada’s Access to Information Act, 1982:

‘Sec. 24. (1) The head of a government institution shall refuse to disclose any record requested under this Act that contains information the disclosure of which is restricted by or pursuant to any provision set out in Schedule II.’ Bill C-426, An Act to amend the Canada Evidence Act (protection of journalistic sources and search warrants), is under active consideration in Ottawa. In his 2007-08 Annual Report, the Information Commissioner noted that: ‘This [Bill] could have serious implications for the manner in which some information under the control of federal institutions may be transmitted to the public and the integrity of the decision-making process on disclosure of information under the Access to Information Act.’ • Bill C-426, An Act to amend the Canada Evidence Act (protection of journalistic

sources and search warrants) stands at first reading in the House as of June 2008. In his 2007-08 Annual Report, the Commissioner noted that: ‘This [Bill] could have serious implications for the manner in which some information under the control of federal institutions may be transmitted to the public and the integrity of the decision-making process on disclosure of information under the Access to Information Act.’ • In January 2008, the Tories introduced Bill C-7, which provides that information about airline safety-related incidents - including material from flight data recorders and self-reported violations - voluntarily provided by airlines or their employees will remain confidential. It also designates such safety reports as ‘mandatory exclusions’ under the Access to Information Act, putting them beyond the reach of access requests. That means they can never be released, making them even more secret than cabinet confidences, which receive absolute protection for 20 years. Nor can they be reviewed by the information commissioner, who had gone to court several times to force disclosure of safety reports Transport Canada argued should remain confidential.289

______________ Two decades after its passage, the ATIA was amended with the most regressive exclusion that could be conceived. In the wake of the shocking terrorist attacks of September 11th 2001, the federal government passed Bill C-36, the Anti-Terrorism Act, which received royal assent in December 2001. Its expressed purpose is to address national security concerns, including threats of espionage by foreign powers and terrorist groups, and the intimidation or coercion of ethnocultural communities in Canada.290

289 Secrecy in the skies; Information about airline safety incidents would be confidential under new bill, by Don Butler. Ottawa Citizen, Jan 19, 2008 290 Government of Canada, Backgrounder No. 12, Security of Information Act. April 2004. http://www.csis-scrs.gc.ca/en/newsroom/backgrounders/backgrounder12.asp

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A portion of Bill C-36 amended the Official Secrets Act 1981, which was replaced by and renamed as the Security of Information Act. The Anti-Terrorism Act amends Sec. 69 of the ATIA to authorize the Attorney General of Canada to completely exclude security and intelligence related information received in confidence from foreign governments from the operation of the Act, by issuing a ‘certificate’:

87. The Access to Information Act is amended by adding the following after section 69: Certificate under Canada Evidence Act 69.1 (1) Where a certificate under section 38.13 of the Canada Evidence Act prohibiting the disclosure of information contained in a record is issued before a complaint is filed under this Act in respect of a request for access to that information, this Act does not apply to that information. Certificate following filing of complaint (2) Notwithstanding any other provision of this Act, where a certificate under section 38.13 of the Canada Evidence Act prohibiting the disclosure of information contained in a record is issued after the filing of a complaint under this Act in relation to a request for access to that information,

(a) all proceedings under this Act in respect of the complaint, including an investigation, appeal or judicial review, are discontinued; (b) the Information Commissioner shall not disclose the information and shall take all necessary precautions to prevent its disclosure; and (c) the Information Commissioner shall, within 10 days after the certificate is published in the Canada Gazette, return the information to the head of the government institution that controls the information.

There are no reports of such a certificate having been applied to date. In passing this section, the Canadian parliament - uniquely in the world - simultaneously disempowered the information commissioner and all federal courts from conducting any independent review of such a decision. By contrast - as the ATIA manual of Colonel Michel W. Drapeau and Marc-Aurele Racicot notes - in the United States, all refusals to disclose information are subject to judicial review in the U.S. Federal Circuit Court. In the United Kingdom, Australia and New Zealand, although a minister of the crown may also issue a certificate, it may still be appealed to the Tribunal charged with the review of administrative appeals under the nation’s FOI law, which may quash the certificate if it finds the exemption was wrongly

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applied. In turn, decisions of these tribunal are reviewable, albeit only on a point of law, by the appropriate court.291 The primary concern is that the Canadian government has yet to convincingly explain why such harmful information releases would not be prevented by applying Sec. 15 of the ATIA (which deals with ‘subversive or hostile activities’). It should be noted that this Sec. 15, which is heavily applied in practice, was drafted after careful consideration by parliamentary committees, after hours of deliberation and the weighing of testimony from expert witnesses: should their opinion count for nothing? At a parliamentary committee hearing, the then-Justice Minister, when asked why ATIA Sec. 15 was not adequate, replied:

I’m afraid, Mr. Chair, that under existing access legislation, there is a loophole created because it permits the Information Commissioner to make certain recommendations. In fact, as far as we’re concerned, that is not sufficient for our allies and we must do that which is necessary to ensure that we have the best information and we are protecting that exceptionally sensitive information.292

Then-Information Commissioner John Reid and others challenged the Minister to explain the ‘loophole’ – it could not be the Commissioner, because he has no power to order disclosure – and no clear explanation was produced. The Commissioner concluded:

The only loophole, thus, could be the possibility that a misguided judge of the Federal Court would order the disclosure of sensitive intelligence information, notwithstanding a clear exception of such information contained in the access law. [Given judicial history] the “misguided judge” theory has no rational basis. Moreover, there was an air of unreality to the former minister’s suggestion that our allies had asked the government to give them a “guarantee” by plugging the “misguided judge” loophole. The Information Commissioner asked the former minister to produce the evidence of any such request; none was forthcoming …. The allies want no more than the simple assurance from Canada that intelligence information which needs to be protected can be protected. Not a single ally doubts Canada’s ability to do so under the existing Access to Information Act.293

For certain security topics - including ones that could potentially be concealed by a Security of Information Act certificate - is it ultimately more dangerous to the public to know the truth, or not to know it? Even if the exclusion does have several legitimate

291 Colonel Michel W. Drapeau and Marc-Aurele Racicot, Federal Access to Information and Privacy Legislation, Annotated 2007. Toronto: Thomson Carswell, 2006, pg. 1-651 to 1-662, 292 John Reid, federal information commissioner, 2002-03 Annual Report, chapter 1. 293 Reid, 2002, ibid

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goals, it could also be used to shield information on grievous misuses of authority (e.g., torture), of the sort that could thrive within the context of such near-absolute secrecy.

______________ Debates on the relationship of the Security of Information Act to the ATIA can be tangled and convoluted.

In October 2006, an Ontario Superior Court judgment Ontario court quashed three sections of the so-called leakage provisions in Sec. 4 of the Security of Information Act, in throwing out RCMP warrants used to search the home and office of Ottawa Citizen reporter Juliet O’Neill, who had published leaked information regarding the Maher Arar case. (The government did not appeal the ruling.) Judge Lynn Ratushny ruled the security provisions were unconstitutional because they violated the Charter of Rights and Freedoms, Sec. 7 and 2(b).

Government lawyers had argued that the ATIA helps define the line between information that is ‘secret official’ and information that can be released. But the judge scoffed at that argument: ‘I have no evidence that Parliament ever intended the ATIA to be the exclusive avenue for the communication of government information and that every other avenue of communication is intended to amount to a criminal offence.’ Indeed, she added, the very idea ‘would itself amount to an unjustifiable limitation on freedom of expression and amount to a clear 'chilling' of free speech and of a free press.’294

The intent of Parliament expressed in the purpose clause of the Access to Information Act appears clear enough:

2. (2) This Act is intended to complement and not replace existing procedures for access to government information and is not intended to limit in any way access to the type of government information that is normally available to the general public.

Leaking records to the media is a longstanding tradition (although not a means of access ‘normally available to the general public’). If the reporter had applied for the same

294 Judge quashes law, warrants authorizing RCMP raid on Citizen reporter, by Don Butler, Ottawa Citizen, October 19, 2006. But in its factum filed in court, the Crown argued that the Security of Information Act is not vague or broad, if it is interpreted in conjunction with the ATIA: ‘Both leakers and recipients of leaked material must know that absent authorization, releasing information that could not be given out pursuant to a request under the ATIA is highly questionable activity,’ the factum stated. ‘Leakers and recipients ought not be allowed to institute a parallel disclosure system which leaves it to these individuals to determine what information ought to be releasable.’ The journalist’s lawyer countered that the Crown's interpretation is wrong, that the access law is completely distinct from the Security of Information Act and that Parliament never intended to make it a crime to circumvent the ATIA.

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information through the ATIA, it is virtually unthinkable it would have been released by this route, because of the Act’s Sec. 15.

Disclosure of government records under ATIA commonly takes months or years, and large parts of the records are often blacked out. So journalists often circumvent the Act and turn to sources within the public service to receive more complete and timely information about the inner workings of government.

Any journalist who skirts the ATIA to gain government information would become a criminal, if the government prevailed in its court case against the journalist, her lawyer stated during the trial. He argued that the Security of Information Act was now being re-interpreted by the government as ‘the enforcement arm of the Access to Information Act…. they are asking you to take a definition of “protected information” from an administrative statute [the ATIA] and use it to give length, breadth and definition to a crime.’295

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Global Commentary

• Article 19, Principles of Freedom of Information Legislation, 1999, endorsed by the

United Nations:

'Principle 8 - Disclosure Takes Precedence. Laws which are inconsistent with the principle of maximum disclosure should be amended or repealed. The regime of exceptions provided for in the freedom of information law should be comprehensive and other laws should not be permitted to extend it. In particular, secrecy laws should not take it illegal for officials to divulge information which they are required to disclose under the freedom of information law.

‘Over the longer term, a commitment should be made to bring all laws relating to information into line with the principles underpinning the freedom of information law. '

• Article 19, Model Freedom of Information Law, 2001:

‘5. (1) This Act applies to the exclusion of any provision of other legislation that prohibits or restricts the disclosure of a record by a public or private body. (2) Nothing in this Act limits or otherwise restricts the disclosure of information pursuant to any other legislation, policy or practice.'

295 Government to make criminals of anyone with leaked information, lawyer argues. By Kate Jaimet. The Ottawa Citizen, August 23, 2006

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• African Union, Declaration of Principles of Freedom of Expression in Africa, 2002:

‘Secrecy laws shall be amended as necessary to comply with freedom of information principles.’

• The Commonwealth Parliamentary Association, Recommendations for Transparent

Governance, 2004:

‘(7.1) Where there is a conflict between the access to information law and any other legislation, the access to information law should, to the extent of that inconsistency, prevail.

‘(7.2) Urgent steps should be taken to review and, as necessary, repeal or amend, legislation restricting access to information.

‘(12.4) The independent administrative body should also play a role in ensuring that other legislation is consistent with the access to information law. This should involve reviewing existing legislation and making recommendations for reform of any inconsistent laws, as well as being consulted on whether or not proposed legislation would impede the effective operation of the access to information regime.’

• World Bank, Legislation on freedom of information, trends and standards, 2004:

‘A key issue here is the relationship between freedom of information and secrecy laws. Some laws - such as India’s - state that in cases of conflict, the freedom of information law takes precedence over secrecy laws. But in most cases secrecy laws are listed as an additional general exception, effectively overriding the freedom of information law. This is contrary to good practice because in most countries secrecy laws were not drafted with openness in mind and so fail to respect the three-part test outlined above.’

• Organization for Security and Co-operation in Europe (OSCE), Access to

information recommendations, 2007:

‘In cases where information may be deemed sensitive by any other law, the FOI law must have precedence.’

______________

Other Nations Amongst 68 nations with FOI statutes, six (all but one of these in Commonwealth nations) establish that the transparency statute will override secrecy provisions in other laws: Antigua and Barbuda, India, Pakistan, South Africa, Thailand, and Trinidad and Tobago.

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A reformed ATIA could hardly do better than to replace its Sec. 24 with the wording found in Sec. 22 of India’s FOI statute:

The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.296

The South African FOI law, in Sec. 5, provides another model for Canada:

This Act applies to the exclusion of any provision of other legislation that (a) prohibits or restricts the disclosure of a record of a public body or private body; and (b) is materially inconsistent with an object, or a specific provision, of this Act.

Pakistan’s FOI ordinance expresses the same principle but not quite as clearly:

3 (1) Notwithstanding anything contained in any other law for the time being in force, and subject to the provisions of this Ordinance, no requester shall be denied access to any official record other than exemptions as provided in section 15 [i.e., disclosure harmful to international relations].

23. The provision of this Ordinance shall be in addition to, and not in derogation of, anything contained in any other law for the time being in force.297

On this subject, Thailand’s FOI statute is most concise, in Sec. 3: ‘All other laws, by-laws, rules and regulations, insofar as they deal with matters provided herein or are contrary hereto or inconsistent herewith, shall be replaced by this Act.’298

296 The Official Secret Act of India prohibits the unauthorized collection or disclosure of secret information and is frequently used against the media. Regrettably, Sec. 24 of India’s FOI law says that information of several security organizations are exempt from the FOI law entirely, although only if the information they hold is not pertaining to allegations of corruption and human rights violations. 297 ‘Article 19 welcomes this provision [3(1)], which appears to state that the Ordinance applies to the exclusion of any provision of other legislation that restricts the disclosure of information… Otherwise, section 23 effectively undermines section 3(1). Recommendations: Section 3(1) should be amended to remove the reference to sections 15 and 23 and section 23 should be deleted. A clear statement of the purposes of the Ordinance should be added.’ - Memorandum on the Federal Government of Pakistan’s Freedom of Information Ordinance, by Article 19, Global Campaign for Free Expression, 2002 298 Yet there is a qualifier in Thailand’s act: ‘Section 43. The Rule on the National Security Protection, B.E. 2517 (1974), insofar as it deals with the official information, shall continue to be in force to such an extent as not contrary to or inconsistent with this Act, unless otherwise provided in the Rule prescribed by the Council of Ministers under section 16.’

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______________ Amongst the 29 nations with draft FOI bills, nine (all but two of these in Commonwealth countries) establish that the transparency statute will override secrecy provisions in other laws: Azerbaijan,299 Bangladesh, Indonesia, Lesotho, Malaysia, Mozambique, Sierra Leone, St. Kitts and Nevis, and Vanuatu. This enlightened concept is slowly gaining ground in the newer generation of FOI laws. The draft FOI statute of Bangladesh expresses the main purpose of most of the other nine drafts, in Sec. 25:

Primacy of this Act: The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or any instrument having effect by virtue of any law other than this Act.

The issue is phrased alternatively in Indonesia’s draft FOI statute, Art. 57:

Upon the effectiveness of this Law, all existing laws and regulations with respect to the access to information shall remain in force insofar they are not contrary to this Law or not revised by this Law.

In the draft FOI law of St. Kitts and Nevis, Sec. 6(1) states that the bill will apply to the exclusion of other legislation in force. For the Commonwealth Human Rights Initiative, although the intent is positive, such a wording is not explicit enough; the CHRI added: ‘At the very least, consideration should be given to amending the wording of Sec. 6(1) to account for the possibility of another law, policy or practice developing in the future.’300

______________

299 Regarding Azerbaijan, 'In article 2.3 ML it is stated that ‘in the event of discrepancy between provisions of this law and any other laws related to right of access to information, the provisions of this law prevail’. I think this is an important article, but it may be wise to add something like: ‘unless the other law extends the right to information’. This is especially important in case specific persons have a special right to information in another law (for example with respect to court proceedings).’ - Written analysis of two alternative Azerbaijani draft laws on Freedom of information, by Jan van Schagen. Organization for Security and Co-operation in Europe (OSCE), 2004. http://www.osce.org/documents/rfm/2006/07/19942_en.pdf 300 St. Kitts and Nevis Freedom of Information Bill 2006, analysis by Cecelia Burgman CHRI (2007) http://www.humanrightsinitiative.org/programs/ai/rti/international/laws_papers/kitts_nevis/st_christopher_nevis_foi_bill_2006.pdf

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Canadian Commentary

• Open and Shut, report by MPs’ committee on Enhancing the Right to Know, 1987:

‘The Committee is concerned about a “slippery slope” effect should the current approach of listed other statutory provisions in Schedule II be retained…. The impact of permitting wholesale additions to the list of other statutory exemptions contained in the Access Act is obvious: the spirit of the legislation could readily be defeated. The Access Act would not be a comprehensive statement of our rights to the disclosure of government records. Instead, it would be amorphous. One of the benefits to be derived from listing all exemptions in the Access Act is that, in effect, the complete Act is brought under one roof. No longer would other legislation need to be consulted in order to determine one’s rights in this vital area. The Committee recommends that the Access Act be amended to repeal section 24/Schedule II […] ‘We have concluded that, in general, it is not necessary to include Schedule II in the Act. We are of the view that in every instance, the type of information safeguarded in an enumerated provision would be adequately protected by one or more of the exemptions already contained in the Access Act. ‘Accordingly, the Committee recommends that the Department of Justice undertake an extensive review of these other statutory restrictions and amend their parent Acts in a manner consistent with the Access to Information Act.’

• The Access to Information Act: A Critical Review, by Sysnovators Ltd., 1994:

‘Recommendation 70: That the review of statutes under section 24 undertaken by the Standing Committee be immediately reviewed by the Department of Justice and a public report issued as to which statutes are being summarily removed from the list and suggestions made as to how section 24 will be reformed to prevent it becoming a loophole around the Access to Information Act. The Commissioner should suggest to the Minister of Justice that this is a small but very tangible step toward open and accountable government.’

• Information Commissioner John Grace, Toward a Better Law: Ten Years and

Counting, 1994:

‘The question must be asked: Why was it necessary to put section 24 in the Access Act? After all, there are substantive exemptions to cover any conceivable legitimate need for secrecy. The standing committee [in 1987] concluded there was no such need. The fact is, section 24 allows the government to keep information secret even when there may be no reasonable justification for secrecy. Even confidences of the Queen's Privy Council receive absolute protection for only 20 years. Yet all the provisions listed in schedule II are accorded mandatory secrecy forever. This provision is the nasty little secret of our access legislation and it has no place at all in the law.’

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• Open Government Canada (OGC), From Secrecy to Openness, 2001:

‘Recommendation 12: Given that the ATI Act contains more than adequate exemptions and exclusions, section 24 of the law should be repealed.’

• John Reid, former Information Commissioner of Canada, model ATIA bill, 2005:

‘19. Section 24 of the Act is repealed.’

• Canadian Newspaper Association (CNA), In Pursuit of Meaningful Access to

Information Reform, 2005:

‘8. Abolish Section 24 of the Act. This section compels the permanent exemption of government information according to a schedule listed in an appendix. This provision has provided governments with an opportunity to narrow the application of the act “through the back-door” by appending an ever-growing list of exclusions, a practice the Information Commissioner has described as “secrecy creep.”’

• Justice Department of Canada, A Comprehensive Framework for Access to

Information Reform: A Discussion Paper, 2005:

‘In relation to the second issue, that of future additions to Schedule II, the Government believes that criteria should also be adopted. These could include: whether the Government institution has a demonstrable and justifiable need to provide an iron clad guarantee that the information will not be disclosed. This criterion would cover records such as tax payer information and census data.

‘The Government shares the opinion of the Task Force that the standard to be met for Section 24 protection should be very high. In addition to meeting the criteria, therefore, the government institution seeking to add a confidentiality provision to Schedule II should be required to justify why the information in question cannot be adequately protected by the other exemptions in the Act.’

• Justice Gomery report, Restoring Accountability, 2006:

‘The Commission favours the deletion of section 24, which says that if some other federal Act states that certain records/information must not be disclosed, then the Access to Information Act adopts that prohibition as part of the access to information regime.’

• Bill C-556, introduced by Bloc Quebecois MP Carole Lavallée, 2008:

'20. Section 24 of the Act is repealed.'

______________

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Canadian Provinces In all provinces and territories, regrettably, secrecy provisions in other laws, when prescribed therein, override the FOI statute. The wording in Sec. 79 of the British Columbia act is typical: ‘If a provision of this Act is inconsistent or in conflict with a provision of another Act, the provision of this Act prevails unless the other Act expressly provides that it, or a provision of it, applies despite this Act.’ These provincial laws need reform on this issue, as does the ATIA.

______________

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Chapter 12 ~ ‘For Immediate Release….’

Duty to Publish, and Routine Release

Must some information be routinely released, or

proactively published under the FOI law?

______________

The symbiotic interplay between freedom of information statutes and the proactive release of government information is intriguing, ever evolving, and seldom examined.

The passage of FOI laws has profoundly changed the political and journalistic dynamic on the free release of government information, and it has led some people to debate whether the effect of FOI statutes may be a double-edged sword, that is, whether the laws in practice have resulted overall in more freedom of information or – ironically – in less.301

The intent of parliament expressed in the purpose clause of this nation’s Access to Information Act, Sec. 2 (2), appears clear enough:

This Act is intended to complement and not replace existing procedures for access to government information and is not intended to limit in any way access to the type of government information that is normally available to the general public.

Unfortunately, using the FOI law to ‘limit access’ is exactly what many public servants in Canada and the world are now doing. As Prof. Wesley Wark put it:

A pernicious version of the law of unintended consequences has dogged the Access Act from the very beginning. The act has mutated from a "last resort" in a citizen's search for knowledge of public policy, to the main recourse. . . Administering access has created such a black mood among Ottawa officialdom that it has cast a permanent pall over the idea of proactively releasing major bodies of records about decision-making into the public sphere. Here was a second unintended blow to good governance.’302

Some records that were routinely granted to reporters in the early 1980s are now blocked unless a formal request is filed. Many applicants note that officials are ‘hiding behind’ an FOI statute even for the most banal records, telling information seekers they must use the law as their first option, not as the last resort that parliament had intended. Then, 301 For instance, ‘It’s a commonplace among reporters of investigative stripe: the various freedom-of-information acts have actually made it more difficult, not less, to pry loose information from government holdings.’ – Maxine Ruvinsky, Investigative Reporting in Canada. Toronto: Oxford University Press, 2008 302 Waiting for access, by Wesley Wark. National Post June 26, 2008

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illogically, some politicians and bureaucrats blame a surfeit of applicants for supposedly bloating the cost of the FOI system and so draining the public treasury, a situation that the government itself needlessly created by failing to allow routine release. The cost is raised further still when the state improperly delays the FOI reply for weeks or months as its public relations branch toils on pre-release ‘issue management’ plan (effectively, a ‘spin control’ plan). Columnist Greg Weston summed it up:

The Harper administration's obsession with secrecy and control has had a ripple effect, overwhelming regular communications channels to the point of dysfunction. Able information officers are commonly gagged, not allowed to provide even routine stuff without clearance from the prime minister's office, a perpetually clogged funnel that ensures responses to public inquiries are delayed or simply never given. As a result, journalists, businesses and other Canadians seeking government information are increasingly being forced to file formal requests under the Access to Information Act.303

Yet it is often forgotten that one may still request any records routinely, and sometimes receive them.304 At certain times, then, the ATIA may seem worse than useless because of its exemptions, fees and delays.305 As one guidebook explained it:

A mandatory exemption does not mean that the record will never be available. It only means that the record will not be available if you ask for it under the Access to Information Act because the act only applies to records requested under that statute. The act is not a code of information practices for all government records. Therefore, if you ask for the same record without mentioning the act, the government institution can give it to you – provided, of course, that there is not some other statute which would prevent disclosure.306

When announcing the passage of FOI statutes, some administrations declare the law is just a flagship of new general culture of open government, and this proclamation would seem to auger well for the concept of broader routine release. As new generations of 303 Ask all you like; Just don't expect any answers under the Harper government's Accountability Act, by Greg Weston. Toronto Sun, June 8, 2008

304 On this point, Ontario’s FOI law includes an enlightened clause, which could also be placed in the ATIA: ‘Pre-existing access preserved. 63 (2) This Act shall not be applied to preclude access to information that is not personal information and to which access by the public was available by custom or practice immediately before this Act comes into force.’ 305 Journalists are routinely advised to first seek records outside the FOI process. For example, ‘A word of caution is needed: I would suggest using the Access Act only as a last resort…. Bureau-crats button up when an access request is made, and people who might have been willing to release information on an informal basis find their hands tied.’ – Rick Ouston, Getting the Goods: Information in B.C. Vancouver: New Star Books, 1990 306 Heather Mitchell and Murray Rankin, Using the Access to Information Act. Vancouver: International Self-Counsel Press, Ltd., 1984

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public servants have come to acquire greater familiarity with the FOI process, the prospect seems brighter yet. Besides noting the potential for increased public trust and confidence in government, the organization Article 19 well summed up the need for broader publication:

Although the main focus of any access to information law will be request-driven access, the proactive publication of information by public bodies is also a key element of a progressive access regime. Most people will never make a specific request for information, so that the system of proactive publication will effectively determine what public information they see.307

In many jurisdictions, the presence of an FOI law has already leveraged the routine release of several types of record that one formerly had to request under FOI, such as lists of polluters (posted then regrettably withdrawn in British Columbia) and restaurant inspection reports. In B.C., the government has posted the texts of its P3 private-public partnership contracts on its website, although several of these agreements have large passages deleted to shield commercial interests.

As most governments are very sensitive to their reputations for transparency, they often proudly announce such actions in press releases. Their hope is that such publicity can engender more public trust, demonstrating that government ‘has nothing to hide,’ while conversely, withholding innocuous records solely by habit and for no sensible cause can provoke public suspicions when none need exist. An additional benefit is that, as the state came to realize, releasing records routinely is far less labour-intensive and costly to taxpayers than the FOI process.308 Information Commissioner Robert Marleau has rightly said Canadians should get more documents from the government without having to ask for them; that departments could routinely disclose audit reports, meeting minutes and a greater array of contract details.309 In a similar vein, in June 2008 the UK Information Commissioner, Richard Thomas, wrote to all chief executives of local authorities, NHS

307 Memorandum on a proposed draft Bill on Freedom of Information for Brazil. Article 19, London, 2005

308 Yet such publication should never be solely internet-based because, even today, not all of the public have internet access or expertise. As Article 19 put it: ‘Moreover, it is not sufficient that the public bodies “make available” the information, but should be obligated to “publish and disseminate widely.”… We submit that simply publishing the information on its website does not satisfy this latter obligation.’ (Memorandum on the Chilean draft Access to Government Held Information Bill, by Article 19. London, 2007) The group adds that Art. 7 of the Mexican Federal Transparency and Access to Public Government Information Law 2002 and Sec..4 of the Indian Right to Information Bill 2004 provide excellent models for consideration.

309 Information czar urges opening data vaults. Kamloops Daily News (British Columbia), Feb. 28, 2008

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trusts, police agencies and thousands of other organizations, urging them to proactively disclose a range of information ‘as a matter of routine.’310 Mr. Marleau added that:

Departments should not be waiting until there is a formal request before disclosing information. The default mode should be more routine and voluntary disclosure. . . . The ideal I am aiming for is that all information requests be handled outside the Act. . . . As journalists, you should also be able to get the answers you need by calling someone at a government department-just like that-without filing a request, without paying a fee and, most importantly, without waiting.311

Sometimes when an FOI request for a high-profile record comes in - or the government perceives that it likely will - and no FOI statutory exemptions could be invoked to withhold it, the government realizes it is pointless to resist, and so it suspends the FOI process in that case and gives out the record freely. At other times, an FOI director might advise the applicant there was never a need to go the FOI route because the record has been already posted on an obscure, poorly organized government webpage, and directs him or her to it. All this is especially welcomed by the media working on deadlines. Routine release is more feasible for older records, which generally become less sensitive with age. In many nations and provinces, some proactive publication is also mandated in statutes other than the FOI law, e.g., B.C’s Financial Information Act. Yet obviously, real transparency entails more than just what a government chooses to release, and FOI laws are mainly designed for, and will always be necessary for, records that the state definitely does not want released. As Swedish philosopher Sissela Bok wrote, ‘if officials make public only what they want citizens to know, then publicity becomes a sham and accountability meaningless.’312 Some longtime FOI users frankly - and I believe not unreasonably - regard much of the information that governments are now placing on their websites as woefully incomplete, self-serving and vacuous. In addition, very few Canadian governmental agencies maintain any kind of public archive of materials released under access, and it would be very difficult to find any Canadian equivalent of the FOIA ‘electronic reading rooms’ that have worked well in the United States.

Some governmental transparency practices would always be welcomed, such as the systematic declassification of historical records in archives, and the posting of completed

310 Information watchdog targets government and public institutions, by Robert Verkaik, Law Editor, The Independent (London), June 13, 2008

311 Robert Marleau, Information Commissioner, Speech to Canadian Association of Journalists (CAJ) luncheon, Ottawa, Feb. 27, 2008

312 Sissela Bok, Secrets: on the Ethics of Concealment and Revelation. New York: Pantheon Books, 1982

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ATIA request descriptions on websites, which would allow the public to access the same records in government reading rooms or to obtain copies for free. Yet these practices and the routine release of certain record types should be guaranteed in law - and ideally should be continually expanded - so that the public is not left to depend on the uncertainties of regulations and voluntary practices, which could be curtailed any day.

For more than a decade, Canada’s Department of National Defence has voluntarily posted summaries of its fulfilled ATIA requests on its website, permitting new applicants to ask for those records with greater ease – a model feature, one regrettably not followed by other agencies. But in May 2008, the Harper government distressingly closed down a database that was an electronic list of every ATIA request filed over many years to all federal agencies; this had allowed ordinary citizens to identify millions of pages of once secret documents that had become public, and request them.

The registry, created in 1989 and known as CAIRS, for Co-ordination of Access to Information Requests System, was indispensable for transparency. Prof. Alasdair Roberts had put the database on his website and opened it to public use. CBC journalist David McKie took over the work in 2006 using another publicly accessible website http://www.onlinedemocracy.ca.313 CAIRS was originally designed as an internal government tool to manage the flow of often embarrassing information. Particularly sensitive requests from news media or opposition politicians would often be red-flagged for special handling that frequently delayed release. But requesters soon began to mine the database to discover obscure documents, fine-tune the phrasing on new requests, and even to do statistical studies. There has been more information release on at least one front: on the Government of Canada’s homepage is a link to the ‘Proactive Disclosure‘ webpage of the Treasury Board Secretariat; here one can read the texts of contracts and the detailed travel and hospitality expenses for ministers and their staff. (http://www.tbs-sct.gc.ca/pd-dp/gr-rg/index_e.asp) One hopes this will be the start of a larger trend. At a minimum, the ATIA should be amended to prescribe the type of records that must be proactively published - far beyond the meager notations in the ATIA’s Sec. 5 – preferably

313 Government transparency just became a little cloudier, by Dean Beeby, Canadian Press, The Spectator (Hamilton, Ontario), May 3, 2008. The Prime Minister said that CAIRS ‘was deemed to slow down the access to information and that is why this government got rid of it.’ In briefing notes prepared for Treasury Board president Vic Toews in May 2008 to help him counter criticisms, bureaucrats said CAIRS was a waste of resources, as it cost $50,000 a year to maintain but was used regularly by only 13 people. (- Information buff hounds CBC; One person filed hundreds of queries under access law, by David Akin. The Ottawa Citizen. July 11, 2008) This, of course, would still be no excuse to cut the service to the one-time users - the journalists, business people, academics, students and ordinary Canadians who referred to it.

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those listed by Article 19, the Commonwealth and others, cited below. (Murray Rankin has one caution, however: a reformed ATIA would still need to preserve the right of requesters to appeal the redactions of portions in proactively published material.314)

There is another concept that needs implementation. Treasury Board guidelines mandate the completion of a Privacy Impact Assessment (PIA) for new programs or services involving personal information, and the PIA summaries are currently made public. Similarly, upon the establishment of each new program or governmental (or quasi-governmental) corporate entity, the Canadian government ideally would be legally required to produce and publish a ‘Transparency Impact Assessment’ (TIA) - which could be as brief as one page - to explain the means by which the new project would be transparent and accountable to the public, and a pledge to maintain these standards. What may seem incomprehensible or even Kafkaesque to the average reader are documented examples of agencies invoking ATIA exemptions to withhold information published in old newspaper clippings, and data already posted on a company’s website.315 Such occasions well illustrate the point of the critic on page 54 of this report who noted that “It is about time we had less law and more common sense in deciding what information the public has a right to know.” Perhaps the FOI law could be amended to prescribe that exemptions cannot be applied to withhold information that has already been published, subject to a very few exceptions.

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Canada’s Access to Information Act, 1982:

Under Sec. 5, the government must publish at least each year a description of the organization and responsibilities of each government institution, including details on the programs and functions of each division or branch of each government institution, manuals, and a description of all classes of records under their control.

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314 Murray Rankin, The Access to Information Act 25 Years Later: Toward a New Generation of Access Rights in Canada. A report for the federal Information Commissioner’s office, Ottawa, June 2008 315 For instance, in the matter of drug companies submitting data to Health Canada as they seek approval for their products, ‘while the government is obliged to keep this “third party information” confidential, the sponsor company is free to make public whatever it wants. Hence Health Canada has found itself in the unusual situation of refusing to release information that is already posted on a company’s website.’ - Transparency and the Drug Approval Process at Health Canada, by Ann Silversides, for Women and Health Protection, Fall 2005 http://www.whp-apsf.ca/pdf/transparency.pdf

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Global Commentary

• Article 19, Model Freedom of Information Law, 2001316

‘17. Every public body shall, in the public interest, publish and disseminate in an accessible form, at least annually, key information including but not limited to:

(a) a description of its structure, functions, duties and finances;

(b) relevant details concerning any services it provides directly to members of the public;

(c) any direct request or complaints mechanisms available to members of the public regarding acts or a failure to act by that body, along with a summary of any requests, complaints or other direct actions by members of the public and that body’s response;

(d) a simple guide containing adequate information about its record-keeping systems, the types and forms of information it holds, the categories of information it publishes and the procedure to be followed in making a request for information;

(e) a description of the powers and duties of its senior officers, and the procedure it follows in making decisions;

(f) any regulations, policies, rules, guides or manuals regarding the discharge by that body of its functions;

(g) the content of all decisions and/or policies it has adopted which affect the public, along with the reasons for them, any authoritative interpretations of them, and any important background material; and

(h) any mechanisms or procedures by which members of the public may make representations or otherwise influence the formulation of policy or the exercise of powers by that body.’

• African Union, Declaration of Principles of Freedom of Expression in Africa, 2002:

'Public bodies shall be required, even in the absence of a request, actively to publish important information of significant public interest.'

316 Regarding one draft FOI bill, Article 19 asserts that, on the question of what counts as genuine access, ‘The mention in paragraph 4 that some of the material is available for a fee would seem to contradict the requirement to publish proactively. Either one has to request the material, and pay a fee to access it, or the public body should be required to publish it proactively, in which case it may not charge a fee.’ - Sierra Leone’s draft Access to Information Bill Statement of Support. Article 19, London, 2005.

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• Council of Europe, Recommendations on Access to Official Documents, 2003:

‘A public authority should, at its own initiative and where appropriate, take the necessary measures to make public information which it holds when the provision of such information is in the interest of promoting the transparency of public administration and efficiency within administrations or will encourage informed participation by the public in matters of public interest.’

• Commonwealth Human Rights Initiative, Open Sesame: Looking for the Right to

Information in the Commonwealth, 2003:

‘The law should impose an obligation on government to routinely and proactively disseminate information of general relevance to citizens, including updates about structure, norms and functioning of public bodies, the documents they hold, their finances, activities and any opportunities for consultation.[….] This is a particularly important aspect of access laws because often the public has little knowledge of what information is in the possession of government and little capacity to seek it. A larger supply of routinely published information also reduces the number of requests made under access to information laws.’

• United Nations Development Agency (UNDP), Right to Information Practical

Guidance Note, 2004.

‘Key questions: Is there a policy that obliges the government and or individual departments to publish information on a proactive basis, even in the absence of a formal right?’

• Commonwealth Parliamentary Association, Recommendations for Transparent

Governance, 2004:

‘(3.1) Public bodies should be required by law to publish and disseminate widely a range of key information in a manner that is easily accessible to the public. Over time, the amount of information subject to such disclosure should be increased. (3.2) Public bodies should be required to develop publication schemes, with a view to increasing the amount of information subject to automatic publication over time. (3.3) Public bodies should make use of new information technologies so that, over time, all information that might be the subject of a request, and that is not covered by an exception, is available electronically [....] (3.4) Where information has been disclosed pursuant to a request, that information should, subject to third party privacy, be routinely disclosed.'

• World Bank, Legislation on freedom of information, trends and standards, 2004:

‘Freedom of information is usually associated with the right to request and receive information. But it is now commonly understood as requiring public bodies to actively disseminate key types of information even in the absence of a request. This includes, for

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example, information about the public body’s structure, finances, services, rules and regulations, decisions, and policies, as well as a guide to the information it holds and mechanisms for public participation.’

• Open Society Justice Initiative, Ten Principles on the Right to Know, 2006:

‘15. Every public body should publish certain routine information on a regular basis even absent any information requests. Many FOI laws require that bodies covered by the law publish information such as an annual report and accounts, and make them easily available to the public even in the absence of any information requests.’

• Transparency International, Tips for the Design of Access to Information Laws,

2006:

‘Proactive transparency: It is increasingly common to find that access to information laws contain provisions requiring public bodies – and private bodies to the extent that they are covered by the law – to make certain types of information available proactively, such as by posting the information on websites and/or having printed reports available in the reception of the institution…. activities of the state with reference to public procurement can be made available automatically (on the Internet and in the national gazette or similar publication), which means that everyone has an equal opportunity to know about upcoming tenders and about contracts that have been awarded. Such measures are needed to overcome traditions of keeping business-related information secret, even where the so-called “business secrecy” relates to the spending of the tax-payers money as part of public-private partnerships and service contracts.’

• Organization for Security and Co-operation in Europe (OSCE), Access to

information recommendations, 2007:

‘Government bodies should be required by law affirmatively to publish information about their structures, personnel, activities, rules, guidance, decisions, procurement, and other information of public interest on a regular basis in formats including the use of ICTs and in public reading rooms or libraries to ensure easy and widespread access.’

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Other nations Pro-active publication and routine release are amongst the FOI issues on which the world has left Canada farthest behind.

Most other nations from Albania to Zimbabwe prescribe such information release in sections of their FOI statutes, and unlike the ATIA’s perfunctory Sec. 5, many of these are exhaustive, sometimes running to over 400 words each; the longest is that of Kyrgyzstan with 1,800 words. (All of theses can be accessed in the World FOI Chart, column X). In some FOI laws, information on risks to matters such as public health and safety must be

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published per the law’s public interest override section (see Chapter 5). As well, proactive publication can also be mandated in statutes other than the FOI law.

This topic is so large that it ideally requires its own report, and there is space below only to note several of the more recommendable examples, many of which could at least be considered for a reformed ATIA: • The United Kingdom’s FOI law, Sec. 19, imposes a duty on every ‘public authority’ to adopt and maintain a ‘publication scheme,’ which must be kept current and approved by the Information Commissioner.

• a stronger default right to records exists in Finland’s FOI law as compared to the ATIA: ‘1.1 Official documents shall be in the public domain, unless specifically otherwise provided in this Act or another Act.’

• public bodies must make computers available to the public to facilitate access (Mexico, Poland, the Philippines)

• all statutes and internal regulations must be published (Columbia, and other nations)

• courts and other bodies are required to publish the full texts of decisions, and the Congress is required to publish weekly on its web site all texts of ‘projects of laws’ (Ecuador)

• public bodies must publish information on a government activity’s influence on the environment (Armenia)

• there is a duty to publish draft legislation in Poland’s FOI statute317 (Such a record is strictly barred from disclosure in the FOI laws of most Commonwealth nations)

• public bodies are required to publish every six month all decisions, circulars, guidelines and any references for documents that have an interpretation of enacted laws or administrative procedures (Portugal)

• in Serbia, the National Council is required to publish the data of sessions, minutes, copies of acts and information on the attendance and voting records of MPs.

• the Swedish FOI law makes it possible for ordinary citizens to go to the Prime Minister's office and view copies of all of his correspondence. (In Canada by contrast, the Prime Minister’s office claims to be exempt from the ATIA and is suing the information commissioner on this point.)

317 Poland’s law, Chapter 2. Art. 6. 1. ‘Public information shall be accessed, in particular on: (1) internal and foreign policy, including on: a) intentions of legislative and executive authorities, b) draft legislation’

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• the state must publish contracts including a list of those who have failed to fulfill previous ones, budgets, results of audits, procurements, credits, and travel allowances of officials (Ecuador); and information relating to public tenders (Croatia)

• the state must publish a description of materials containing information relating to any grant or contract made by or between the institution and another government and/or public institution or private organization (draft FOI bill of Nigeria)

• public bodies must publish the content of all decision and policies it has adopted which affect the public, along with the reasons for them, any authoritative interpretations of them, and any important background material (Antigua and Barbuda)

• national and local governments must post online: statistics on crime and economics; information relating to health or safety; budgets and draft budgets; information on the state of the environment; and draft acts, regulations and plans including explanatory memorandum. They are also required to ensure that the information is not ‘outdated, inaccurate or misleading’ (From the Estonian FOI law, which cites 32 types of public records in Sec. 28)

• information on the granting of special or exclusive rights to market operators, private organisations and private persons.’ (Hungary318)

• in India, all public authorities must proactively publish and disseminate a very wide range of information, including their decision-making norms and rules, opportunities for public consultation, and recipients of government subsidies, licences, concessions, or permits. Public authorities must also maintain indexes of all records and over time computerize and network their records

• institutions are required to make documents available directly though an electronic register, especially legislative documents and those relating to the development of policy and strategy (Kosovo)

• government must produce an index of classified information (Ecuador)

318 In Hungary, there have been several valuable amendments to the FOI statute. In 2003 the so-called "Glass Pockets Act" modified 19 different laws including the FOI to facilitate the transparency of the use of public funds by limiting business secrets, expanding disclosure requirements and requiring budget organizations to continually post updated financial information. Act XC of 2005 on the Freedom of Information by Electronic Means imposes E-FOI requirements for the law. It requires a number of public bodies to create home pages and sets out in an annex an extensive list of information that needs to be released. http://www.freedominfo.org/countries/hungary.htm

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• the duration for restricted information is limited to one year, subject to renewals (Latvia)

• public bodies must disclose transactions involving acquisition and disposal of property and expenditures undertaken by a public body in the performance of its duties (Pakistan)

• public bodies must publish a description of the powers and duties of its senior officers, and the procedure it follows in making decisions (Antigua and Barbuda)

• on the internet, the state must publish records on the acquisitions of goods and services. The publication will describe transactions in detail – the promised amount, the suppliers and the quantity and quality of the goods and services that were acquired (Peru)

• a public authority shall publish details of any process that exists for consultation with, or representation by, members of the public in relation to the formulation of policy in, or the administration of, the public authority; or the exercise of the powers or performance of duties, by the body; a description of all remedies available in respect of an act or a failure to act by the body (Uganda)

• public bodies must publish any direct request or complaints mechanisms available to members of the public regarding acts or a failure to act by that body, together with a summary of any requests, complaints or other direct actions by members of the public and that body’s response (Antigua and Barbuda)

• in Kenya’s draft FOI bill, the state must publish all relevant facts while formulating important policies or announcing the decisions which affect the public; provide to any person the reasons for any decision taken by it in relation to that person; ‘before initiating any project, or formulating any policy, scheme, programme or law, publish or communicate to the public in general or to the persons likely to be affected thereby in particular, the facts available to it or to which it has reasonable access which in its opinion should be known to them in the best interests of natural justice and promotion of democratic principles.'

• in Palestine’s draft FOI bill, Art. 8 requires both public and private “industrial institutions” to publish six-monthly reports providing information on the location, nature and associated hazards of toxic materials used by them, the volume of materials released into the environment as a result of manufacturing processes and waste disposal methods and mechanisms used by them.

• with the publication of government structures, agreements, policies, etc., the information released ‘shall be made in language easily understandable by the public’ (Indonesia’s draft FOI bill)

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In Australia, under a bold blueprint by David Solomon for rewriting Queensland's FOI law – which has been endorsed in full by Queensland’s Anna Bligh - private schools, businesses and charities could also fall under the laws if they get taxpayer funding.319

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Canadian commentary

• Open and Shut, report by MPs’ committee on Enhancing the Right to Know, 1987:

‘6.6. The Committee recommends that once a document has been released to a particular applicant, subsequent applicants should be able to review this record in the reading room of the government institution. A list of records released under the Access to Information Act should be available in the reading room and in the Annual Report of the government institution. Should a copy be desired by subsequent applicants, they should be required at most to pay reasonable photocopying expenses without any additional expense for search and preparation.’

• The Access to Information Act: A Critical Review, by Sysnovators Ltd., 1994:

‘Recommendation 19: Add a section to the Act which would place an obligation on government institutions to make accessible in open digital systems that majority of information that is not exempt and assure that any databases falling into categories one and two of the taxonomy are actively disseminated and are made available through public systems mandated by Act or consequent regulation. Institutions should be required to maintain an open database of information already released under the Access to Information Act.

‘Recommendation 35: The government should be encouraged to issue a policy which states that no exemptions will be applied to results of public opinion research; that a listing of such research, updated no less frequently than each two months (60 days), must be maintained in the office of each institution's Access to Information Coordinator; and that the listing and public opinion results must be provided upon informal request by the public.

• Information Commissioner John Grace, Toward a Better Law: Ten Years and

Counting, 1994:

‘Recommendation 9. Government institutions be required to maintain a public register of all 29 records which have been released under the access Act.

‘Recommendation 10. Government institutions be required to release routinely all information which describes institutional organizations, activities, programs, meetings,

319 Premier positive on blueprint for free information.The Courier Mail (Australia). June 11, 2008

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and systems of information holdings and information which tells the public how to gain access to these information resources.

‘Recommendation 11. Government's duty to disseminate should also extend to all information which will assist members of the public in exercising their rights and obligations, as well as understanding those of government.’

• A Call for Openness, report of the MPs’ Committee on Access to Information,

chaired by MP John Bryden, 2001:

‘3. We recommend that the Access to Information Act be amended to include a ‘passage of time’ provision requiring institutions to routinely release records under their control thirty years after their creation. This provision would over-ride all exemptions from release contained in the Act [….]’

• Treasury Board Secretariat, ATIA Review Task Force report, 2002:

‘7-3. The Task Force recommends that the Co-ordination of Access to Information Request system (CAIR) be redesigned to make it more user-friendly, and that its component containing information on completed requests across government be made available to the public on a government Web site.'

7-4. That 'government institutions be encouraged to post summaries of the information they have released which may be of interest to others, in addition to depositing a hard copy of the documents in their reading rooms.

8-3. That 'government institutions more systematically identify information that is of interest to the public and develop the means to disseminate it proactively. These means should include regular publication, and the use of Web sites, or special arrangements or partnerships with the private sector, where appropriate.'

8-5. That 'government institutions: routinely release information, without recourse to the Act, whenever the material is low-risk, in terms of requiring protection from disclosure; and establish protocols for use in identifying information appropriate for informal disclosure.'

• Bill C-201, introduced by NDP MP Pat Martin, 2004:

‘The enactment […] (b) requires government records that are more than 30 years old to be automatically opened except where specifically exempted for reasons of national security, public safety or international obligations;’

* John Reid, former Information Commissioner of Canada, model ATIA bill, 2005

(underlined parts are Mr. Reid’s amendments to the existing Act):

‘3. The Act is amended by adding the following after section 2:

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[…] 2.2 Every government institution shall maintain a public register containing a description of every record disclosed in response to a request made under this Act.

[Re: ‘68. This Act does not apply to (a) published material or material available for purchase by the public;’ etc.] 41. Paragraph 68(a) of the Act is replaced by the following:

(a) published material or material available for purchase by the public if such material is available at a reasonable price and in a format that is reasonably accessible;

• Justice Gomery report, Restoring Accountability, 2006:

‘It endorses the creation of a public register of all documents disclosed under the Access to Information Act.’

• British Columbia Freedom of Information and Privacy Association (FIPA), 2008:

‘We propose that the ATI Act be amended to mandate the proactive governmental internet publication – or at least the free release to anyone who asks for them outside of the ATIA process - of these record types listed in the British Columbia FOIPP Act, sec. 13(2):

13(1) The head of a public body may refuse to disclose to an applicant information that would reveal advice or recommendations developed by or for a public body or a minister. (2) The head of a public body must not refuse to disclose under subsection (1) (a) any factual material, (b) a public opinion poll, (c) a statistical survey, (d) an appraisal, (e) an economic forecast, (f) an environmental impact statement or similar information, (g) a final report or final audit on the performance or efficiency of a public body or on any of its programs or policies, (h) a consumer test report or a report of a test carried out on a product to test equipment of the public body, (i) a feasibility or technical study, including a cost estimate, relating to a policy or project of the public body, (j) a report on the results of field research undertaken before a policy proposal is formulated, (k) a report of a task force, committee, council or similar body that has been established to consider any matter and make reports or recommendations to a public body, (l) a plan or proposal to establish a new program or to change a program, if the plan or proposal has been approved or rejected by the head of the public body,

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(m) information that the head of the public body has cited publicly as the basis for making a decision or formulating a policy […]

‘Federally, one must generally apply through the ATIA to learn the salary of a public official, and then one is only permitted to obtain the ‘salary range.’ The unjustifiable qualification of ‘range’ should be dropped from the ATIA. By contrast, in British Columbia, as the B.C. Financial Information Act prescribes, exact salaries and expense figures, and contract recipients and amounts, are published - the government has chosen to post these online – and so they should be in the ATIA or another act.

Canadian provinces Nearly every provincial and territorial FOI statute (except in New Brunswick and Prince Edward Island) cites several types of records that must be published, and these sections are almost as weak and limited as those of the ATIA Sec. 5, at least when compared to other nations. In most provinces, the government must publish a directory of records, similar to that noted in the Nova Scotia law:

48 (1) The Minister shall publish a directory to assist in identifying and locating records of public bodies. (2) The directory shall include (a) a description of the mandate and functions of each public body and its components; (b) a description and list of the records in the custody or under the control of each public body; (c) a subject index […] (3) The directory shall include for each personal-information bank maintained by a public body.

Some transparency statutes also require the release of manuals, as noted in the British Columbia FOI law:

70(1). Policy manuals available without request. The head of a public body must make available to the public, without a request for access under this Act, (a) manuals, instructions or guidelines issued to the officers or employees of the public body, or (b) substantive rules or policy statements adopted by the public body, for the purpose of interpreting an enactment or of administering a program or activity that affects the public or a specific group of the public.

The Ontario law mandates that directories and manuals be accessible in public reading rooms or the internet.320 Several provincial statutes mention routinely release, but such release is not mandatory. In British Columbia, for instance, 320 Ontario Information and Privacy Commissioner Anne Cavoukian is recommending the government publicly disclose both winning and losing bids for all contracts awarded by provincial organizations. Posting bids "will go a long way to increasing government accountability," she said. (What is Ontario hiding? Annual report urges end to province's habit of withholding information, Toronto Star, May 30, 2007) This would also be advisable for an reformed ATIA.

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71(1) The head of a public body may prescribe categories of records that are in the custody or under the control of the public body and are available to the public, on demand, without a request for access under this Act.

In Quebec’s FOI law, there is some mandatory release prescribed (for the internet no less), but only for records noted in regulations:

16.1. A public body, except the Lieutenant-Governor, the National Assembly or a person designated by the National Assembly to an office under its jurisdiction, must distribute through a web site the documents or information made accessible by law that are identified by regulation of the Government, and implement the measures promoting access to information enacted by the regulation.

An excellent report in 2002 by the Quebec Information Commission advised: ‘Instead of waiting for a request for access to a document, the public body should ensure automatic publication of the information when it is created. In fact, the general principle should be the automatic publication of information with the request for access the exception.’ The report also recommended that a general index of documents be drawn up by each public body that would be put online.321 In her 2007 annual report, Ontario Information and Privacy Commissioner Anne Cavoukian recommended the government publicly disclose both winning and losing bids for all contracts awarded by provincial organizations. Such a move would also be advisable for a reformed ATIA as well.

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A NOTE ON CHINA

Canadian readers may be intrigued to see how laws of China are changing, and the scope of routine release prescribed, although of course there is no guarantee that practices will follow suit. The People’s Republic of China Ordinance on Openness of Government Information (OGI Regulations) was published on April 24, 2007, and was due to take effect on May 1, 2008. (Problems have already been described in Chinese FOI act tied by red tape, by Rowan Callick, The Australian, May 1, 2008)

321 Québec Commission d’Accès à l’Information, Reforming Access to Information: Choosing Transparency (2002)

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Legal scholar Jamie P. Horsley writes that ‘[The Regulations] mark a turning point away from the deeply ingrained culture of government secrecy toward making Chinese government operations and information more transparent.’322

Article 9: State organs should take the initiative in releasing government information that meets any one of the criteria listed below:

1. Concerns the vital interests of citizens, legal persons or other organizations;

2. Requires the broad knowledge or participation of the public; […]

Article 10: People’s Governments and their offices at the county level [should release]:

2. National economic and social development plans, planning for special projects regional planning and related policies; 3. Statistical information on national economic and social development; [eight other topics follow]

Article 11. 4. Information on the management and use and circumstances of allocation for emergency rescues and disaster relief work, veteran benefits, social relief, charity contributions and other funds.

Shanghai Municipality

As Mr. Horsley reports, ‘While the Chinese State Council mulls over a draft of China's first freedom of information legislation, the bustling metropolis of Shanghai, home to some 16 million people, adopted China's first provincial-level open information legislation on January 20, 2004.

'Following a trend set by the Guangzhou Provisions, the Shanghai Provisions also require the advance publication for comment of draft decisions, municipal rules and regulations and programs or plans that affect the major interests of Shanghai residents or have a major social influence…. Shanghai and other local governments including such a provision in their OGI legislation are breaking additional new ground in terms of public participation and open government generally.’323 From the Provisions:

322 China Adopts First Nationwide Open Government Information Regulations, by Jamie P. Horsley http://freedominfo.org/features/20070509.htm

323 Shanghai Municipal Provisions on Open Government Information (Shanghai Municipal People’s Government Decree No. 19, January 20, 2004) Translation 41204, by The China Law Center, Yale Law School http://islandia.law.yale.edu/chinalaw/html/publications.htm Also see, ’Shanghai Advances the Cause of Open Government Information in China’ 20 April, 2004 http://www.freedominfo.org/news/20040420.htm

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Article 9. (Making Drafts of Major Decisions Public) If a government agency is drafting a decision, formulating provisions or drawing up a plan, project or program that involves major interests of citizens, legal persons or other organizations, or has a major social influence, the drafting agency or the decision-making agency should, in the course of formulation, make the draft public to society and the public’s opinions should be fully listened to.

Article 8. Government agencies should on their own initiative disseminate to society the following government information: […]

(2) Economic and social plans and projects and the situation regarding their progress and completion; and (3) Plans such as the comprehensive urban plan, all other types of urban plans and comprehensive land use plans.

(B) Major Matters Closely Related to the Public: (1) The forecast, occurrence and handling of epidemic situations, disasters or emergencies that influence the security of life and property; [and much more…]

MORE ROUTINE RELEASE IN IRELAND

‘When you start to see public authorities proactively publishing information, rather than the commissioner having to order it, you will know that the culture of government secrecy is changing. We're not there yet.’ These words from Assistant Information Commissioner Marie Anderson sum up where freedom of information is today. Three years after the Freedom of Information Act became law the act has become so widely used and accepted that public bodies are publishing increasing amounts of information before it is even requested.

‘I would say we're not seeing enough proactive publication and our office has been liaising recently with public authorities around new model publication schemes to promote proactive disclosure,’ said Ms. Anderson. ‘Responding to requests is a reactive event… it's much better to proactively publish. You shouldn't have to be asking the same things time and time again about the same information.

‘And something else we need to take more follow-up action on is when information is only released to the individual making the request. We expect to see any information released to a requester published on an authority's website but I accept that it is not happening in many cases.’

- Public Benefit Most from a More Open Government, Belfast Newsletter, Jan.25, 2008

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Chapter 13 ~ Power to the People?

Education and Promotion

Does the FOI law oblige the government to educate the public on its FOI rights,

and to promote the FOI process? The hoped-for empowerment of the people by means of the passage of the Access to Information Act in 1982 can only be achieved if the public is aware of its rights and knows just how to exercise them in practice. The report of the 2002 Treasury Board ATIA task force found that the Act is still not well-understood by the public, requesters, third parties who supply information to government, or even the public service, and there is a pressing need for more education about access to information. ‘Another early victim of government timidity in facing up to the rigors of openness was a public education program which might have better informed the public of its new access rights,’ former information commissioner John Grace wryly reported in 1994. ‘This task was to be Treasury Board's. The government decided, however, that it could not be undertaken because the risk was too great. Horror of horrors, the campaign might be successful! More Canadians might use the Act to the greater irritation or embarrassment of members of the government.’324 No statute can legislate a change in attitude. But still, at a minimum, the ATIA should mandate what specific educational measures must be taken to inform the public of its legal rights of access. In the first full year of the ATIA’s operation in Canada, 1984, the government was sent only ten percent of the access requests that it had prepared itself to receive. If a strong public education campaign had been launched, that number might have been far higher. Since then, the volume of requests has risen, but it still remains modest enough to easily belie any familiar but self-serving political or bureaucratic complaints to the effect that the government is ‘overwhelmed’ and ‘unfairly burdened’ by hordes of ATIA requestors. For some journalists who have been reading access laws for decades and have made hundreds of FOI requests, it is easy to forget how difficult the process can be for one just beginning in the ‘game’ (for such it is), and who has been taught nothing of this democratic right that should be considered as fundamental as voting. The challenge can be daunting indeed for even experienced applicants to identify the type and location of the needed records, to write and send request letters, and then to follow

324 Information Commissioner John Grace, 1993-94 Annual Report. Ottawa.

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through, i.e., fight upstream against fees, delays, complex exemptions, and then navigate the appeal routes for months or years, all for the types of records that the citizens have already paid for with their tax dollars and most of which should be routinely releaseable. Each month, for example, the British Columbia Freedom of Information and Privacy Association (a Canadian organization working full time for FOI rights), receives calls from members of the public asking how to exercise their information rights. Some questions recur frequently, such as: Do I request my personal records thought the ATIA or the Privacy Act? Is that public or private body covered under the ATIA? Who is the ATIA coordinator and how do I contact him or her? How do I appeal against exemptions, high fees, long delays? Must I use an official form to send in a request, or is a letter enough? Can I make a request orally, by fax or email? (Answer: Only by mail for the ATIA – unlike with other FOI laws - because a cheque for $5 must be enclosed to the Receiver General.) In critiquing the draft FOI bill of Mozambique, Article 19 notes that:

Informing the public of their rights and promoting a culture of openness within government are essential if the goals of freedom of information legislation are to be realised. In our experience, a recalcitrant civil service can undermine even the most progressive legislation. Promotional activities are, therefore, an essential component of a freedom of information regime.325

This is a largely overlooked but essential need, for the better-known Canadian users of FOI statutes are more educated, e.g., lawyers, journalists and academics. (Is this situation not true to some degree in most nations?) But what of the others? One original purpose of transparency laws was to enable the less advantaged potential FOI applicants to help themselves and not need to depend mainly upon well-meaning intermediaries acting on their behalf. The FOI process as noted above is arduous enough for most people. But when barriers of education, disability, and foreign language are added, the goal can become simply insurmountable; here, FOI education and promotion are essential.326 325 Note on the draft Law of Mozambique on Access to Official Sources of Information, by Article 19, London, 2005. Elsewhere, the same group also noted that, ideally, these tasks should be undertaken by the public authorities themselves, as well as by an independent oversight body with specific responsibility for ensuring adequate attention and resources are directed towards these tasks. - Memorandum on the Law Commission of the Republic of Bangladesh Working Paper on the Proposed Right to Information Act 2002, by Article 19, London, 2004 326 This is a familiar global issue. For instance, while the government of India has placed advertisements in national newspapers to educate citizens about the new FOI law, Suresh Joshi, the Information Commissioner in Bombay, is concerned that there isn't enough awareness in all sections of the country. ‘People from rural India especially don't know much about the act,’ he says. ‘Someone called me the other day to find out if I could find him a suitable bride,’ he laughs.

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To this end, public promotions are necessary in radio and television advertisements, and more detailed ‘how-to’ guides require publication in newspapers and government websites, such as that of Scottish Information Commissioner Kevin Dunion who ran a strong advertising campaign just before Scotland's Freedom of Information Act came into effect in 2005, declaring ‘I made sure the public was aware of its new rights.’327

Such activity needs to be prescribed in an amended ATIA, and not be left to voluntary practices and regulations of the day. The education and promotion task is within the government’s mandate, and should not fall just to information commissioners and non-governmental organizations, whose financial and human resources are limited (although the commissioner could well take the lead role).

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Canada’s Access to Information Act, 1982:

There is no requirement for public education or promotion in the ATIA. Yet thankfully, to aid requestors the Act does contain two enlightened clauses that are also present in many other FOI statutes: Sec. 12 (3) grants the ATIA applicant with ‘a sensory disability’ the right to obtain records in ‘an alternative format’; and Sec.12 (2) gives one the right to have records translated in either official language, English or French. Applicants in the provinces and several other nations are not so fortunate. Still, the ATIA requestor must make his or her access request only ‘in writing’ (Sec. 6).

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Global Commentary

• Article 19, Principles of Freedom of Information Legislation, 1999, endorsed by the

United Nations:

‘Principle 3. Promotion of Open Government. - Informing the public of their rights and promoting a culture of openness within government are essential if the goals of freedom of information legislation are to be realized. [….]

‘As a minimum, the law should make provision for public education and the dissemination of information regarding the right to access information, the scope of information which is available and the manner in which such rights may be exercised. In countries where newspaper distribution or literacy levels are low, the broadcast media are a particularly important vehicle for such dissemination and education.

- New tool to fight red tape, corruption, by Anuj Chopra, The Christian Science Monitor, November 16, 2005 327 Firm hand with a big stick. The New Zealand Herald, December 22, 2007

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‘Creative alternatives, such as town meetings or mobile film units, should be explored. Ideally, such activities should be undertaken both by individual public bodies and a specially designated and adequately funded official body – either the one which reviews requests for information, or another body established specifically for this purpose.’

• Council of Europe, Recommendations on Access to Official Documents, 2002:

‘Member states should take the necessary measures to: (i) inform the public about its rights of access to official documents and how that right may be exercised; (ii) ensure that public officials are trained in their duties and obligations with respect to the implementation of this right; (iii) ensure that applicants can exercise their right.’

• The Commonwealth Parliamentary Association, Recommendations for Transparent

Governance, 2004:

‘(11.1) Public education campaigns should be undertaken to ensure that the public are aware of their right to access information.’

‘(11.2) Parliamentarians have an important role to play in this process by making sure that their constituents are aware of their rights. A range of other bodies also have a role to play here, including the independent administrative body that is responsible for implementation of the law, human rights groups, the media (and the broadcast media in particular), public bodies themselves and civil society generally. Use should also be made of regular educational systems, including universities and schools, to promote civic understanding about the right to access information.’

• World Bank Institute, Transplanting Transparency: Initial Empirics and Policy

Applications, 2005:

‘There is no point in having a law that provides for the right to access to information if there is not clear and effective mechanism to enable citizens to use the law and if the content and benefits of the law have not been communicated through a broad communication campaign.’

• Organization for Security and Co-operation in Europe (OSCE), Access to

information recommendations, 2007:

‘The body should also promote and educate on freedom of information…. In order to use their rights of access it is necessary for the applicants to know about their rights. Paragraph 1 in principle X therefore recommends that member states should take the necessary steps to inform the public about its rights.’

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ORAL REQUESTS

• Article 19, Model Freedom of Information Law, 2001: '8. (3) An individual who is unable, because of illiteracy or disability, to make a written request for information pursuant to section 4(1) may make an oral request, and the official who receives an oral request shall, subject to sub-section (5), reduce it to writing, including their name and position within the body, and give a copy thereof to the person who made the request.' • Open Society Justice Initiative, Access to Information, Monitoring Tool, 2004:

‘6. At the Justice Initiative, we believe it to be imperative that requests can be filed orally. Access to information is a fundamental right so obstacles to its exercise should be eliminated wherever possible. The right of access to information must not be a right exclusive to an educated elite. The possibility of filing oral requests is particularly important in less developed countries where literacy may be low, postal services poor, and e-mail not widely available.’

Other nations There is no requirement for public education or promotion in the FOI laws of most nations, although others seem to far exceed Canada in these ventures in practice, most notable in Eastern Europe. Several nations thought it important enough to mandate these activities in statutes, and this is advisable for an amended ATIA. India’s transparency law imposes duties to monitor and promote the act. In the FOI law of Slovenia, ‘The Ministry shall perform promotional and developmental tasks in relation to access to information of public character….’ Better yet, in Ecuador:

‘Bodies are required to adopt programs to improve awareness of the law and citizen participation. University and other educational bodies are also required to include information on the rights in the law in their education programmes.’

The Mexican FOI law charged the ‘Federal Institute for Access to Public Information’ - a body of the Federal Public Administration which is independent in its operations, budget and decision-making - with promoting and publicizing the exercise of the right of access to information. In the impressive draft FOI bill of Kenya,

28. The Information Commissioner shall - (a) develop and conduct educational programmes to advance the understanding of the public, and in particular, of disadvantaged communities, of this Act and of how to exercise the rights contemplated in this Act [….]

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The 2006 FOI law of Kyrgyzstan also provides for education:

Chapter 7. Article 34. Informing of publicity about realization of this Law. 1. State bodies and local self-government bodies shall conduct explanatory work with the help of mass media among population on order of realization guaranteeing by this Law the opportunities of the receiving the information.

More on Oral Requests

Canadian ATIA requests may only be made ‘in writing.’ This is lamentably also the case in other Commonwealth nations such as Australia. New Zealand, South Africa and Zimbabwe. Yet beyond request format, some other FOI statutes establish that information must be provided orally as well, a valuable service for the blind. This thankfully includes Canada’s ATIA, in Sec. 12(3), whereby applicants with a ‘sensory disability’ (i.e., relating to sight or hearing) must be provided with records in an ‘alternate format’ of their choosing, which would be then converted within a ‘reasonable’ time. The FOI laws of at least 32 other jurisdictions permit those with literacy challenges (as distinct from sensory disabilities) to make oral requests: Albania, Antigua and Barbuda, Armenia, Austria, Bulgaria, China, Guangzhou municipality, Shanghai municipality, Croatia, Czech Republic, Estonia, Hungary, Italy, Jamaica, Latvia, Macedonia, Mexico, Moldova, Netherlands, Norway, Philippines, Poland, Romania, Scotland, Serbia, Slovakia, Solevnia, Sweden, Turkey, Uganda, Ukraine and Uzbekistan. Oral requests are permitted in the draft FOI bills of Bangladesh, Ghana, Guatemala, Indonesia, Kenya, Kyrgyzstan, Mongolia, Nepal, Papua New Guinea (where the applicant may make a request in Pidgin or Motu), the Russian Federation, Sierra Leone, Sri Lanka, St. Kitts and Nevis and Tanzania. Such oral requests can often be resolved more quickly than written ones, and speed is sometime mandated in the laws. In Turkey, oral FOI requests are to be treated ‘with hospitality and kindness’ and immediately resolved if possible. In Armenia and Uzbekistan, too, oral requests must be responded to as soon as feasible. In aiding requestors, the Mexican law goes further, in Sec. 40: ‘The liaison sections will help individuals to prepare their requests for access to information, especially in cases when the person making the request cannot read or write.' In some regions, the oral method is in much demand: In Romania, according to the Agency for Government Strategies, there were over 710,000 requests - mostly oral - in 2005.328 To ensure tracking and consistency in applying the FOI right (and preserving the applicant’s formal appeal options), officials should record the applicant’s oral request in

328 http://freedominfo.org/countries/romania.htm

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their own writing. Kenya’s draft law makes this point: ‘8(2) A public information officer who receives an oral request shall, subject to section 10, reduce the request to writing, including the public information officer’s name and designation, and shall give a copy thereof to the applicant.’ On a related topic, parliamentarians often face pressure from bureaucrats to amend FOI laws to permit themselves to refuse access requests that they deem ‘frivolous or vexatious,’ or ‘systematic and repetitious,’ and indeed a few FOI statutes include these terms. This seems a not unreasonable option for a reformed ATIA, but only if the Information Commissioner – not the public agency – grants permission for this limitation to be applied, and the applicant may appeal the restriction. A few applicants might indeed try one’s patience, yet however reasonable the rationales may sound in principle, in practice such clauses would be far too easily abused by some officials on their own to withhold important records involving the public interest.

Canadian commentary

• Open and Shut, report by MPs’ committee on Enhancing the Right to Know, 1987:

‘2.2. The Committee further recommends that the Treasury Board undertake a public education campaign in conjunction with the proclamation of any amendments to the Access to Information Act and the Privacy Act and also consider printing notices about individual rights under both the Access to Information Act and the Privacy Act to be included in standard government mailings.’

• Open Government Canada (OGC), From Secrecy to Openness, 2001:

‘Recommendation 27: The federal government should increase its public education program concerning the access to information system.’

• Treasury Board Secretariat, Access to Information: Making it Work for Canadians.

ATIA Review Task Force report, 2002:

‘6-5 The Task Force recommends that: the Act be amended to recognize the role of the Information Commissioner in educating the public about the Act and access to government information in general [….]’

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Canadian provinces There is no requirement to educate the public or promote the law in the provincial or territorial FOI acts. Yet some permit the information commissioner to do so, such as in British Columbia’s statute:

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42(1) In addition to the commissioner’s powers and duties under Part 5 with respect to reviews, the commissioner is generally responsible for monitoring how this Act is administered to ensure that its purposes are achieved, and may […] (c) inform the public about this Act, (d) receive comments from the public about the administration of this Act, (e) engage in or commission research into anything affecting the achievement of the purposes of this act, (f) comment on the implications for access to information or for protection of privacy of proposed legislative schemes or programs of public bodies […]

This is at least better than nothing, yet a duty on FOI education or promotion should be assigned to the central government (which can subcontract tasks to others) mainly because of its far greater financial resources. The right to make an FOI request orally is explicitly mandated only in the FOI statutes of Newfoundland and Labrador, Quebec, the Yukon, and Manitoba. In the Ontario act, it is just a privilege that officials may choose to grant or not. The Yukon law goes furthest to accommodate applicants:

6. (2) A request for access to a record may be made orally or in writing verified by the signature or mark of the applicant and must provide enough detail to identify the record. If the request is made orally the person who receives it must make a written record of the request and the request is not complete and does not have to be dealt with until its written form is verified by the signature or mark of the applicant.

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Chapter 14 – ‘Everyone’s Business’

The Environment and FOI

What environmental disclosure rules are set in the FOI law, and is there a

separate disclosure law on environmental transparency?

At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes.

- Principle 10, Declaration of the U.N. Conference on Environment and Development (UNCED), Rio de Janeiro, 1992, endorsed by Canada

Public access to environmental information is an important right and essential support to effective environmental policy. An informed public can contribute meaningfully to decision-making on environmental issues. Moreover, an informed public can act as a watch-dog, supplementing governmental environmental management and supervision efforts. None of this is possible

without access to environmental information.

- Public Access to Environmental Information, by Ralph E. Hallo. Report for the European Environment Agency (EEA), 1997

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In the spirit of the age, environmental protection frequently leads opinion surveys as the top issue of public concern in Canada. Once regarded as a separate and specialized topic, the environment has since become integrated into most facets of life, politics and the economy. Much of the public believe that the state and private sector have absolutely no moral right to keep secret the condition of the air we all breathe, the water we all drink, the land we all inhabit, and the plight of birds, fish and animals. Such issues, they say, are indisputably ‘everyone’s business’; ideally, they would transcend political parties and ideologies, as would the subject of FOI as well.329 Far from peripheral or secondary, the subject of environmental transparency overlaps and intersects with the matters of every other chapter in this report (e.g., policy advice, cabinet records), and needless to say deserves a full separate report; for several readers, indeed, this may be their primary or sole FOI topic of interest. Our definition of the subject should be expansive, for ‘some consider that environmental information includes

329 Such goals were expressed in the Conservative party’s 2006 election platform: ‘A Conservative government will implement a “made-in-Canada” plan focused on ensuring future generations enjoy clean air, clean water, clean land, and clean energy here in Canada.’ http://www.conservative.ca/media/20060113-Platform.pdf

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all information relevant to decision-making that concerns the environment: thus financial, social, economic data can also be environmental information.’330 Several nations accord the matter such weight that in their FOI statutes, environmental protection is the only public interest clause that overrides all disclosure exemptions. Some have created separate transparency laws for the environment alone, which include mandatory pro-active publication of records beyond a FOI request-driven regime. Finally, the environment is one of the very few topics for which international treaties on the public’s right to access information have been forged. Nonetheless, the campaign for environmental transparency is not complete; in fact, it has just begun. For 30 years the corporate and government sectors have strongly resisted the concept of any public legal right to access databases of environment-related information, the former sector complaining the records could be exploited for profit (more than half of the FOI requests in some nations are filed by businesses), and the latter claiming the data might be distorted by environmental non-governmental groups for political ends. As what is out of sight is very often out of mind, sometimes it is only the public revelation of an environmental problem, or even the potential for publicity, that persuades a government to enforce its own laws. Some companies have successfully sued the United States government to halt the release of databases on their activities affecting pollution, health and safety. Twice, the U.S. Environmental Protection Agency had planned to create large public databases on companies, but corporate lobbying quashed the plans.331 In Canada, too, industry is generally not easily persuaded of the value of transparency, to put it mildly. As one example, in August 2007 a report warned that energy companies are refusing to share critical data with federal officials because they are concerned that their sensitive information will become public through Access to Information Act requests. As a result, the paper said, the security of Canada's energy infrastructure is jeopardized because officials lack the information they need to plan properly. (Yet the ATIA already contains ample exemptions to protect third party information.)

330 Public Access to Environmental Information, by Ralph E. Hallo, Netherlands Society for Nature and Environment. Report for the European Environment Agency (EEA), 1997. http://reports.eea.europa.eu/92-9167-020-0/en/page001.html 331 Congress finally stepped in, by amending the FOIA in 1996 to make clear that departments had an obligation to extract bulk data from their databases and to provide data in easily manipulated digital formats. These changes, in the Electronic FOIA Amendments (EFOIA) – helped access applicants, but governments still balked. American courts twice rejected government arguments that extracting the data would be too much ‘burden.’ Some states also wish to exploit their databases for cost-recovery as a corporate resource, on the concept ‘Why give away what you can sell?’ Government information for sale is still available in principle, but not in practice if the price is too high.

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The reluctance of oil, gas, pipeline and power companies to trust Ottawa with information about their vulnerabilities to natural disaster or terrorist attack is a key conclusion in this report written by auditors within the Department of Natural Resources, obtained by the Canadian Press under the Access to Information Act, ATIA (though partially redacted): ‘Consequently, private sector representatives indicated that sharing this information with the federal government actually reduces the security posture of their facilities.’332 The auditors noted that Bill C-12, which passed in spring 2007, amends the access law to better protect confidential information about "the vulnerability of . . . (a) third party's buildings or other structures, its networks or systems." The revised legislation also allows a minister to override confidentiality in the public interest. Private-sector energy officials who oversee about 85 per cent of Canada's energy infrastructure, were still not satisfied.

In the United States, similar concerns were noted and countered by longtime FOI and environmental campaigner, Vermont Democratic senator Patrick Leahy:

The biggest rollback in FOIA's 40-year history was the overly broad waiver that the White House tacked onto the charter for the Department of Homeland Security. Now, just by stamping “critical infrastructure” on the top of data submitted to the government, big polluters can shield information about toxic leaks, chemical spills into rivers or lakes and other environmental offenses, shielding those disclosures from the public and from the journalists who have been the public's watchdogs.333

Even when environmental data could be obtained through the FOI laws in principle, official resistance, long delays, labyrinthine complexity and high costs often render it inaccessible in practice. Overall, to bring about needed environmental transparency in Canada today appears an uphill struggle, partly due to signals from the current Conservative government of Prime Minister Steven Harper, which is imposing much tighter controls on discussion. For instance, this year, a new Environment Canada policy dictates that government researchers refer all media queries to Ottawa. The media office then directs reporters to submit their questions in writing, and then researchers are to send written responses to senior management for approval. If the researcher is cleared to do an interview, he or she is asked to stick to ‘approved lines.’ The policy has infuriated scientists and sent a chill through Environment Canada. As one editorial noted: ‘This is a disastrous approach, particularly on an issue in which many

332 Fearing access-law leaks, energy companies won't share data with Ottawa. By Dean Beeby, Canadian Press. The Globe and Mail, August 20, 2007 333 Leahy Spurs Environmental Protections: Vermont Senator Tackles Government Secrecy to Ease Coverage of Green Issues. Television Week, October 23, 2006

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Environment Canada scientists can claim some expertise - climate change. At the very least, this new policy guarantees that there will be a certain level of public distrust about what Environment Canada scientists say about climate change - or anything else for that matter.’334 It is difficult to conceive of how such a tone would not reach down to the processing of environmental ATIA requests as well.

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Ideally, how would the release of environmental information be guaranteed in the Canadian Access to Information Act?

One step, clearly, would be to include a strong mandatory public interest override (see Chapter 5), on the model of British Columbia’s FOI statute, Sec. 25: ‘Whether or not a request for access is made, the head of a public body must, without delay, disclose to the public, to an affected group of people or to an applicant, information (a) about a risk of significant harm to the environment […]’335

Beyond the ATIA, Canadian parliamentarians could exercise political imagination and consider adopting – even in modified versions - several of the more proactive environmental transparency concepts from other nations’ FOI statutes, constitutional guarantees, and international agreements (cited below), for the Canadian context. Some believe Canada has a moral obligation to follow the spirit, if not the letter, of the Aarhus Convention’s and Rio Declaration’s prescriptions on environmental transparency.

To the federal bureaucracy several of these concepts may appear extreme, as innovations often do at first. Such ideas are seeds that could take years to sprout; yet it seems likely that in time, inevitably, Canadians will accept no less.

Canada’s Access to Information Act, 1982:

Regarding environmental protection, there is only one limited and discretionary override in the Act, within the mandatory Sec. 20, on third party information.

20 (6) The head of a government institution may disclose all or part of a record requested under this Act that contains information described in any of paragraphs (1)(b) to (d) if (a) the disclosure would be in the public interest as it relates to public health, public safety or protection of the environment; and

334 Censorship is bad science. Editorial, Kamloops Daily News. Feb. 4, 2008. 335 The party currently in office stated during the 2006 election campaign that: ‘A Conservative government will: Provide a general public interest override for all exemptions, so that the public interest is put before the secrecy of the government.’ This pledge was not fulfilled.

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(b) the public interest in disclosure clearly outweighs in importance any financial loss or gain to a third party, any prejudice to the security of its structures, networks or systems, any prejudice to its competitive position or any interference with its contractual or other negotiations.

Those paragraphs (b)(c) and (d) refer to financial, commercial, scientific or technical information supplied in confidence; disclosure that could cause financial or competitive loss, or interfere with negotiations.

But the override cannot apply to 20 (1)(a), ‘trade secrets of a third party.’ Some would argue that it should in a reformed ATIA, for cases could clearly arise where the public interest in the environment should surpass trade secret protection.

In addition, as per ATIA Sec. 24, there are information management provisions in several laws listed in Schedule 2 related to environmental issues that override the ATIA, e.g., Canadian Environmental Assessment Act, Hazardous Products Act, Nuclear Safety and Control Act, Transportation of Dangerous Goods Act. As noted in Chapter 11, most commentators agree that ATIA Sec. 24 should be abolished.

There are also several environmental information disclosure requirements in other federal statutes, such as the Fisheries Act, Sec. 79.2(c). The Canadian Environmental Protection Act, 1999, Sec. 44 (1), appears expansive at first, but could extend further on several specific items, such as the proactive internet publication of emission databases, records on radioactive waste and genetically modified organisms, time limits for information release, appeal routes for information complaints, and more. For several topics, publication is only discretionary, not mandatory. A few provisions are cited below. • Canadian Environmental Protection Act, 1999

44. (1) The Minister shall

[…] (d) collect, process, correlate, interpret, create an inventory of, and publish on a periodic basis, data on environmental quality in Canada from monitoring systems, research, studies and any other sources;

(e) formulate plans for pollution prevention and the control and abatement of pollution, including plans respecting the prevention of, preparedness for and response to an environmental emergency and for restoring any part of the environment damaged by or during an emergency, and establish, operate and publicize demonstration projects and make them available for demonstration; and

(f) publish, arrange for the publication of or distribute through an information clearing-house

(i) information respecting pollution prevention,

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(i) pertinent information in respect of all aspects of environmental quality, and

(ii) a periodic report on the state of the Canadian environment.

[…] 45. The Minister of Health shall

(a) conduct research and studies relating to the role of substances in illnesses or in health problems;

(b) collect, process, correlate and publish on a periodic basis data from any research or studies done under paragraph (a); and

(c) distribute available information to inform the public about the effects of substances on human health.

[…] 50. Subject to subsection 53(4), the Minister shall publish the national inventory of releases of pollutants in any manner that the Minister considers appropriate and may publish or give notice of the availability of any other inventory of information established under section 48, in any manner that the Minister considers appropriate.

[…] 66. (1) The Minister may, for the purposes of encouraging and facilitating pollution prevention, establish and maintain a national pollution prevention information clearing-house in order to collect, exchange and distribute information relating to pollution prevention.

[…] 66. (3) The Minister may, in exercising the powers conferred by subsections (1) and (2), act alone or in cooperation with any government in Canada or government of a foreign state or any of its institutions or any person.

As well, there are environmental factors included in the federal government’s whistleblower protection law, but that statute has grievous limitations (as will be discussed in Chapter 15). • Public Servants Disclosure Protection Act, 2005

16. (1) A disclosure that a public servant may make under sections 12 to 14 may be made to the public if there is not sufficient time to make the disclosure under those sections and the public servant believes on reasonable grounds that the subject-matter of the disclosure is an act or omission that

[…] (b) constitutes an imminent risk of a substantial and specific danger to the life, health and safety of persons, or to the environment.

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Global Commentary

Many global political organizations urge the adoption of a much broader ‘public interest override’ section (including for environmental information) in FOI laws, as an international standard, than the one that now exists in Canada’s Access to Information Act; that is, they say the override should apply to all the FOI exemptions and be mandatory, not just apply to two exemptions and be discretionary as with the ATIA. (These groups’ statements are fully detailed in Chapter 5.) Many also cite environmental concerns as a factor in relation to other FOI topics, such as whistleblower protection and the coverage of private entities. One example would be a statement by the Organization for Security and Co-operation in Europe (OSCE) that ‘Information relating to threats to public health or the environment […] should not be classified as a state or official secret.’336

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International Treaties

In the 1980s, considering that the environment is perhaps the one subject more than any other that is sure to transcend political borders, several statesmen realized that a trans-national law was needed to set minimum standards for environmental disclosure to assist information seekers from any country, one that would override weak or non-existent national FOI laws and practices.337 Partly because at the time most European nations had no such laws at all, the European Parliament first took the initiative of calling for such a measure in a resolution adopted in 1985.

This resolution eventually led to the European Parliament and the Council Directive 90/313/EEC, on public access to environmental information, which went into effect in 1993. The Directive created a right of access to environmental information in every member state of the European Union. As a result, all EU member states now have legislation on access to environmental information in place.

336 Access to information by the media in the OSCE region: trends and recommendations. Summary of preliminary results of the survey, with recommendations on FOI laws. By Miklós Haraszti, Representative on Freedom of the Media. Vienna, April 2007 http://www.osce.org/documents/rfm/2007/05/24250_en.pdf 337 Because the environment overlaps with so many other subjects, there is a suggestion to expand the scope still further: ‘To prevent confusion over what is environmental and what is not in the minds of public officials, it may even be necessary to move in the direction of an EU Right to Know Act covering all public decisions, so that the citizen is secure in the knowledge that all that he or she needs to know is freely available.’ - Ken Collins, MEP, Chairman of the European Parliament Committee on the Environment, Public Health and Consumer Protection, in preface to Hallo, ibid.

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‘The Directive represents a dramatic change for most member states, introducing openness where secrecy was the rule.’338 It was later replaced by the similar Directive 2003/4/EC, which the European Commission presented to observe its obligations under the 1998 Aarhus Convention.339

Let us first consider the EU Directives, then the related Aarhus treaty.

According to a 2006 EU summary of the directive, one of its purposes was to reduce ‘inequality’ within the Community ‘and/or as regards conditions of competition’ which could have resulted from disparate FOI laws.340

'Information relating to the environment' means any available information in written, visual, aural or data-base form on the state of water, air, soil, fauna, flora, land and natural sites, and on activities or measures adversely affecting or likely so to affect these. It includes environment policies, programmes and plans; reports on the state of the environment (to be published at least every four years); and environmental impact studies and risk assessments.

Member states must ensure that public authorities make environmental information held by or for them available to any applicant, whether a natural or a legal person, on request and without the applicant having to state an interest. Information must be provided to the applicant within a month, with an extra month allowed for complex requests. Access to public registers and lists and onsite examination of records requested are free of charge. However, authorities may make ‘a reasonable charge’ for supplying any environmental information.

The states must ensure that all information held by the public authorities relating to imminent threats to human health or the environment is immediately distributed to the public likely to be affected.

There are exceptions to disclosure, relating to the confidentiality of the proceedings of public authorities, of commercial or industrial information, of personal data, the interests or the protection of any person who has supplied the requested information on a voluntary basis, or the protection of the environment. But these exceptions cannot be applied where the information relates to ‘emissions into the environment.’

338 Hallo, ibid 339 European Union, Directive 2002/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information. http://europa.eu/scadplus/leg/en/lvb/l28091.htm 340 EUROPA: Activities of the European Union. Summaries of Legislation. 2006 http://europa.eu/scadplus/leg/en/lvb/l28091.htm

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The Aarhus treaty sets the new standard for environmental transparency. The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, usually known as the Aarhus Convention, was signed on June 25, 1998 in the Danish city of Aarhus.341 As, and as of November 2007, it had been signed and ratified by 40 (primarily European and Central Asian) countries and the European Community.

As with the EU directives, the Aarhus Convention grants the public rights regarding access to information, public participation and access to justice, in governmental decision-making processes on matters concerning the local, national and transboundary environment – all, it says, ‘within the framework of national legislation.’ Member states are explicitly welcomed to surpass the EEU and Aarhus standards.

The Convention has a unique Compliance Review Mechanism, which allows members of the public to relate their concerns about a party's compliance directly to a committee of international legal experts empowered to examine the merits of the case. As of May 2007, 18 communications from the public - many originating with non-governmental organizations - had been lodged with the Convention's Compliance Committee.

These treaties have not been relegated to ‘paper tiger’ status; a genuine political will for their enforcement is evident. In July 2005, for instance, the European Commission announced that it was taking legal action against seven countries for failing to implement the 2003 EU Directive. In a separate case, Germany’s Environmental Information Act was found several times by the European Court of Justice to be inadequate under the 1990 EU Directive.342 There have been important additions to the Aarthus treaty: The Kiev Protocol on Pollutant Release and Transfer Registers to the Aarhus Convention was adopted at an extraordinary meeting of the parties in May 2003 in Kiev, Ukraine; 36 states and the European Community signed the Protocol. The Kiev Protocol is the first legally binding international instrument on Pollutant Release and Transfer Registers. Such PRTRs are inventories of pollution from industrial sites and other sources such as

341 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. Aarhus, Denmark, June 1998. (‘The Aarhus Convention’) http://www.unece.org/env/pp/documents/cep43e.pdf 342 On occasion, environmental transparency can also be regarded as a basic human right in law. The European Court of Human Rights ruled in the 1998 case of Guerra v Italy that governments had an obligation to inform citizens of risks from a chemical factory under Art. 8 (protecting privacy and family life) of the European Convention on Human Rights, which Italy had failed to do. http://freedominfo.org/countries/italy.htm

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agriculture and transport. Parties to the protocol need not be parties to the Aahus Convention; the protocol is in this sense a free-standing, international agreement.343

An amendment to the Aarhus Convention on ‘Public Participation in Decisions on Deliberate Release into the Environment and Placing on the Market of Genetically Modified Organisms’ was adopted at the second meeting of the parties in 2005, in Almaty, Kazakhstan. As of November 2007 it had been ratified by four countries.

Summarizing the role of the Arhus treaty overall, the United Nations’ then-Secretary-General Kofi Annan declared,

Although regional in scope, the significance of the Aarhus Convention is global. It is by far the most impressive elaboration of principle 10 of the Rio Declaration, which stresses the need for citizens' participation in environmental issues and for access to information on the environment held by public authorities. As such it is the most ambitious venture in the area of environmental democracy so far undertaken under the auspices of the United Nations.344

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The Aarhus Model

The Aarthus treaty adapts many of the strongest features of the EU directives, and adds others, such as mandating that each party make available sufficient product information ‘which enables consumers to make informed environmental choices.’ (Art. 8) North American parliamentarians might at least consider its features. The Aarhus exceptions to disclosure are mainly similar to those found in the EU directives, such as for commercial interests and national security. Yet there is an override to these exceptions, in Article 4 (4): ‘The aforementioned grounds for refusal shall be interpreted in a restrictive way, taking into account the public interest served by disclosure and taking into account whether the information requested relates to emissions into the environment.’ Emergency measures are also prescribed:

5 (1). Each Party shall ensure that: […] (c) In the event of any imminent threat to human health or the environment, whether caused by human activities or due to natural causes, all information which could enable the public to take measures to prevent or mitigate harm arising from the threat and is held by a public authority is disseminated immediately and without delay to members of the public who may be affected.

343 EUROPA, 2006, op.cit. 344 The Aarhus Convention: An Implementation Guide. Prepared for the Regional Environmental Center for Central and Eastern Europe. Geneva, 2000 http://www.unece.org/env/pp/acig.pdf

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Regarding the increasing privatisation of environmental information, provisions must be made to clarify under what records are ‘held by a public authority’ and the circumstances by which the information collected is accessible to the public. This may take place both in connection with the use of negotiated agreements and the privatisation of public functions. (These questions are the subject of Chapter 4.)

On the coverage of entities, the scope of the Aarthus treaty is remarkably broad. In section 2 of the Definitions, ‘Public authority’ means:

(a) Government at national, regional and other level; (b) Natural or legal persons performing public administrative functions under national law, including specific duties, activities or services in relation to the environment; (c) Any other natural or legal persons having public responsibilities or functions, or providing public services, in relation to the environment, under the control of a body or person falling within subparagraphs (a) or (b) above; […]

Under such a regime, a government-created entity such as the Canada’s nuclear Waste Management Organization (WMO) could never be excluded from the scope of the Canadian ATIA, as it now is. Another concern of privatization is that commercial rates might be charged for access to environmental information of public interest. This is justified from the point of view of the privatised bodies by their need to cover their own costs. Prices must be set and capped by government to ensure the public can afford access to the information. The ATIA does not fully define ‘environmental information,’ but the Aarthus treaty does, and its comprehensive wording below could work as a good starting point. In Sec. 3 of the Definitions, ‘Environmental information’ means any information in written, visual, aural, electronic or any other material form on:

(a) The state of elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites, biological diversity and its components, including genetically modified organisms, and the interaction among these elements; (b) Factors, such as substances, energy, noise and radiation, and activities or measures, including administrative measures, environmental agreements, policies, legislation, plans and programmes, affecting or likely to affect the elements of the environment within the scope of subparagraph (a) above, and cost-benefit and other economic analyses and assumptions used in environmental decision-making; (c) The state of human health and safety, conditions of human life, cultural sites and built structures, inasmuch as they are or may be affected by the state of the

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elements of the environment or, through these elements, by the factors, activities or measures referred to in subparagraph (b) above;

How that information is to be delivered proactively is described in Art. 9:

Each Party shall take steps to establish progressively, taking into account international processes where appropriate, a coherent, nationwide system of pollution inventories or registers on a structured, computerized and publicly accessible database compiled through standardized reporting. Such a system may include inputs, releases and transfers of a specified range of substances and products, including water, energy and resource use, from a specified range of activities to environmental media and to on-site and offsite treatment and disposal sites.

There are many ways to gather up disparate data and make access easier for the public. In the 1990s, the U.S. Environmental Protection Agency begun work to link its data so that people could locate quickly information that a single company reports under various environmental laws. The EPA's effort was intended to overcome the difficulty caused by information housed in separate data bases, in different places and formats, and subject to different disclosure rules.345

For that matter, writes Ralph Hallo, what is the meaning of information "held by" public authorities when computerised data collection and storage by regulated bodies can be continuous and instantaneous? Such information may be held by the regulated body and available upon request to a public authority. ‘If a public authority can summon the data up upon command, why should a member of the public not have the same opportunity?’346

Far from being solely a burden to government, FOI requests could even be seen as a benefit to it: ‘The anxiety about a flood of requests for [environmental] information has proven to be unfounded…. Indeed, the development of practical mechanisms and structures to respond to public requests for information often helps the authorities to better manage their data collection, storage and retrieval systems.’347

Key environmental issues, such as climate change and pollution, respect no political boundaries, which is one reason why foreign citizens ideally would be permitted to make Access to Information Act requests, as they are under Aarhus. (See Chapter 2.)

345 For the latest American environmental FOI developments (which are impressive indeed), see the website of the Society of Environmental Journalists http://www.sej.org/foia/index.htm 346 Hallo, op.cit 347 Hallo, op.cit

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Aarhus in the Americas?

It will likely not be long before the question is raised of the implementation of a legally binding equivalent of an Aarhus treaty in North America, and perhaps later expanded to South America as well. This would not necessarily be a call to change environmental policies or practices, per se, only to be more transparent about them. In Europe, natural environment is less abundant and so taken far less for granted than in Canada, hence such a campaign here might be a more onerous task. As well, critics might counter that because EU environmental transparency directives were conceived in the 1980s in response to a lack of FOI statutes in Europe at that time, an international treaty here for this purpose would be needless since Canada has had an Access to Information Act since 1982. But such arguments would err, because the ATIA has fallen far behind international FOI standards, does not allow foreign citizens to make ATIA requests, and lacks many features present in other national environmental FOI laws, such as mandatory and publicized emission registries. Yes, the context is different, but the principles are similar, and some may assert that they also require application in the Canadian context, perhaps in modified forms; as the theory goes, if international trade agreements should be able to override national environmental protections, as many investors urge, why should the same principle not apply for the positive purpose of environmental transparency? The important question remains as to whether each nation would find it best to implement the treaty by supplementing its existing FOI law, or by creating a new statute solely for environmental information, as many European countries have done. The result of such a treaty in the Americas would be to grant any applicant equal access to the environmental information across borders that may ultimately affect us all, and it would ideally guarantee a minimum standard of disclosure even if one future national administration might wish to regressively amend its own national FOI laws to limit access to it, or fail in actual disclosure practices.

National FOI laws To conform to the Aarhus treaty, many European countries passed distinct environmental disclosure statutes – some incorporating the treaty’s provisions verbatim - in addition to their general FOI laws. To take one example, Denmark signed the treaty in 1998 and ratified it in 2000. That nation’s Access to Environmental Information Act implemented the European Environmental Information Directive (90/313/EEC) and was amended in 2000 to implement the Aarhus Convention. Several other countries – such as the Netherlands, Sweden, Tajikistan and Ukraine - attempt to fulfill their Aarhus disclosure obligations through their national FOI statutes.

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The subject of international treaties’ application to sub-national units needs also to be considered.

In some member states that signed the 1990 EU directive, Ralph Hallo reports, the division of environmental responsibilities within a nation complicated implementation. For example, in Belgium, legislative changes took place at both the national and regional level (Flanders, Wallonia and Brussels). Thus, four separate regimes were established for access to the information depending on location and administrative competencies. In Germany, the federal states have responsibility for much of environmental regulation and several federal states acted in advance of federal implementing legislation; there are also environmental transparency laws in the nine states of Austria.

Similar measures can be taken outside of Aarthus treaty region as well. For instance, Argentina’s Law Establishing Access to Environmental Information (2003) guarantees the right to access environmental information in the hands of the national, provincial or municipal state and the city of Buenos Aires, as well as autonomous entities and public utilities.

In Canada, environmental authority is divided between national and provincial jurisdictions but an international treaty would likely apply to them all. This might be notable in a province such as British Columbia, where the Liberal government created a new ‘climate change cabinet committee’ whose deliberations are excluded from the FOI law entirely; where the Information Commissioner ruled it was unjust to charge $173,000 for access to a list of the top ten polluters in B.C., a list that the previous government had posted for free online for a decade348; where in January 2008, the Commissioner reported that the government had systemically discriminated against environmental groups by delays in processing their FOI requests;349 and so forth.

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Within general freedom of information statutes, a public interest override for environmental and other purposes, one that may or must trump exemptions that limit disclosure, is a valuable feature (although very rarely applied in practice).

Of the 68 nations that have passed these statutes, I counted 29 with some form of public interest override, and in 15 of 29 draft FOI bills. Most of these overrides – even in some Commonwealth countries - are stronger than the one found in the Canadian ATIA. Environmental protection is explicitly noted in such overrides in eleven FOI laws, and in

348 http://fipa.bc.ca/home/news/163

349 http://fipa.bc.ca/home/news/180 These practices resulted from the administration of the British Columbian premier who shouted in his electoral victory night speech in 2001 that ‘We will bring in the most open and accountable government in Canada. I know some people say we'll soon forget about that, but I promise that we won't!’

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three draft FOI bills, although it is implicitly included in the general nature of most of the other overrides.

There are several other national gestures towards environmental transparency, some which could be discussed apart from the context of international treaties: • The United Kingdom, Canada’s parliamentary model, signed the Aarhus Treaty in June 1998, and the nation also passed a set of Environmental Information Regulations in 2004.350 The latter contains many exemplary features worth replicating, such as the broad definition of environmental information taken from the 2003/04 EU Directive, a clause that agencies must ‘progressively make the information available to the public by electronic means which are easily accessible,’ a 20 day time limit, and strict penalties for those who obstruct or destroy records. • The FOI law of Zimbabwe has a positive exception to the cabinet records and policy advice exemptions, one which Canada could consider:

15. Protection of advice relating to policy (1) The head of a public body may not disclose to an applicant information relating to advice or recommendations given to the President, a Cabinet Minister or a public body. (2) Subsection (1) shall not apply to […] (e) information relating to the state of the environment…

• In Jamaica a law mandating the creation of a Pollutant Release and Transfer Register was passed in 1999. Another law was approved in 2004 that requires ministries, local governments and specified businesses to publish yearly reports on the environmental consequences of their activities.351 • In the draft FOI bill of Palestine, Art. 8 requires both public and private ‘industrial institutions’ to publish six-monthly reports providing information on the location, nature and associated hazards of toxic materials used by them, the volume of materials released into the environment as a result of manufacturing processes and waste disposal methods and mechanisms used by them.352

350 http://www.ico.gov.uk/upload/documents/library/environmental_info_reg/detailed_specialist_guides/environmental_information_regulations_statutory_instrument_2004.pdf 351 http://www.freedominfo.org/countries/jamaica.htm 352 Memorandum on a draft Law on Access to Information for Palestine, by Article 19. London, 2005. http://www.article19.org/pdfs/analysis/palestine-2005.pdf

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• Portugal is an example of a member state which added an innovative touch to its legislation by establishing a special body to consider disputes arising from refusals to provide access to environmental information.353 • Uzbekistan long resisted signing the Aarhus Convention. Yet the nation’s FOI law has a strong prescription for proactive publication: Art. 6 states that governmental bodies should provide the media with official reports on events and facts of public interest, including information on matters such as health hazards and the environment. • In Serbia’s general FOI law, public authorities must respond to requests in 15 days except where there is a threat to the environment, which mandates a reply within 48 hours. • Estonia’s Environmental Register Act contains a valuable level of detail, requiring the collection in a database of information on pollution, radioactive waste, genetically modified organisms, natural environmental factors, permits and other materials. There are also a variety of other environmental laws that provide for collection and disclosure of environmental information. • One of the most elaborate and detailed guarantees of environmental transparency is found in Slovakia’s amended Act 17/1992 on the Environment. This statute (which was prompted by the EU directive) mandates proactive publication:

§33a. Disclosing Information on Environmental Pollution. (1) Any natural person licensed to carry out business or a legal entity obliged under special regulations, or resolutions based on such regulation, to measure the amount of specified emissions into the air or water or watch; or to measure any other impacts on environment by a facility run by such person, shall disclose the results of these measurements and observations in generally comprehensible form and on a generally easily accessible place on a regular basis not later than ten days after the end of each month when such obligation applied and disclose a summary not later than 30 days after the end of a calendar year. (2) It must be clear from the publicized results of measurements and observations what was the extent of the pollution of environment by the facility and what was the relation of the measured values to the legal or permitted limits. (3) A natural person with a business license or a legal entity that gravely endangered or caused damage to the environment, especially as a result of any accident of the facility, fire or traffic accident shall inform the public without any delay. […]

Slovakia’s FOI law also goes further than the environmental override in section 20(6) in Canada’s ATIA (which cannot override ‘trade secrets of a third party’):

353 Hallo, op.cit.

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10 Protection of trade secret. (1) The Obligee shall not disclose any information classified as a trade secret.

(2) Disclosure of the following information shall not be deemed as a violation or jeopardizing a trade secret: a) information related to a significant impact on health of the population, world cultural and natural heritage, environment, including biological diversity and ecological stability, b) information on environmental pollution […]

• A stated governmental willingness to actualize environmental transparency is spreading through most of the world – at least in principle. In China, for example, the State Environmental Protection Administration, quickly moved to release - in advance of http://fipa.bc.ca/home/news/180 publication of the 2008 state FOI regulations themselves – its own implementing measures on ‘environmental information’ that will apply not only to disclosure by environmental government agencies but also to the disclosure of certain corporate environmental information.354 • The example of the Russian Federation regrettably illustrates the overall need for effective implementation and enforcement as well as regulations:

Despite the fact that there is no specific freedom of information law in Russia, several strong guarantees for the provision of environmental information to the public do exist, setting high standards in this area. However, there are serious obstacles to their implementation: many of these provisions are ignored or abused, gravely undermining any free flow of information.355

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CONSTITUTIONAL RIGHTS

The constitutions of roughly 50 nations grant the citizens the right to obtain government information; only eight – all non-Commonwealth – explicitly mention environmental information356 (which is nonetheless implicitly included in the general definition). These

354 China Adopts First Nationwide Open Government Information Regulations, by Jamie P. Horsley, 2007. http://freedominfo.org/features/20070509.htm 355 The Forbidden Zone: Environmental Information Denied in Russia, by Article 19. London, 2006. http://www.article19.org/pdfs/publications/russia-the-forbidden-zone.pdf

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eight nations are Albania (Constitution Art. 56), Argentina (Art. 41(2)), Belarus (Art. 34), Latvia (Art. 115), Moldova (Art. 37), Montenegro (Art. 19), Slovakia (Art. 45); and the Ukraine (Art. 50); the Ukrainian example reads:

50. Everyone is guaranteed the right of free access to information about the environmental situation, the quality of food and consumer goods, and also the right to disseminate such information. No one shall make such information secret.

Latvia’s constitution underscores the link between information access and individual well-being:

115. The State shall protect the right of everyone to live in a benevolent environment by providing information about environmental conditions and by promoting the preservation and improvement of the environment.

It is no surprise that such guarantees are most numerous in Eastern and Central Europe, regions wishing to repair the environmental devastation that was partly facilitated by the secrecy of former authoritarian regimes. But why would the general principle also not be relevant elsewhere, including Canada?

Canadian commentary

Most Canadian FOI commentators echo the views of global critics on the need for a stronger public interest override, and their statements are fully detailed in Chapter 5. A concern for environmental transparency dates back at least two decades, as noted in the report Open and Shut.

• Open and Shut, report by MPs’ committee on Enhancing the Right to Know, 1987:

Recommendation 6.16. That ‘the Access to Information Act be amended to add a provision requiring a government institution to reveal information as soon as practicable where there are reasonable and probable grounds to believe that it is in the public interest to do so and that the record reveals a grave environmental, health or safety hazard.’

• The Access to Information Act: A Critical Review, by Sysnovators Ltd., 1994:

‘Recommendation 28: Provide a principle statement that indicates that the public interest is paramount where records reveal a grave environmental, health or safety hazard to the public on the model of the Ontario legislation.’

356 There is a caveat. ‘As a rule, such constitutional provisions require legislation or regulations to activate the right they profess to guarantee. Without such secondary legislation, the constitutional provisions are seldom of practical effect.’ – Hallo, op.cit

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• Open Government Canada (OGC), From Secrecy to Openness, 2001:

‘Recommendation 5: The ATI Act should be amended to require Cabinet to add an institution to the list of institutions covered by the law if the institution (or information it maintains): […] performs essential public interest functions (i.e.. in the areas of health, safety, environmental protection, economic security).’

• Bill C-201, introduced by MP Pat Martin, 2004:

Section 13. ‘The head of a government institution may disclose any record requested under this Act, or any part thereof, that contains information described in subsection (1) if that disclosure would be in the public interest as it relates to public health, public safety, protection of the environment or the governance of corporations and, if the public interest in disclosure clearly outweighs in importance any financial loss, prejudice to the competitive position of or any other injury referred to in this section to the Government of Canada or to a government institution or its officers or employees.’

• John Reid, former Information Commissioner of Canada, model ATIA bill, 2005

(underlined parts are Mr. Reid’s amendments to the existing Act):

‘(3) Subsection 77(2) of the Act is replaced by the following: (2) subject to subsection (3), the Governor in Council shall, by order, amend Schedule I so that it includes […] (e) all bodies or offices performing functions or providing services in an area of federal jurisdiction that are essential to the public interest as it relates to health, safety or protection of the environment.’

Canadian provinces

All Canadian provinces and territories (except New Brunswick) have general public interest overrides – which could include environmental considerations - in their FOI statutes. The strongest one is found in that of British Columbia’s law, Sec. 25, which was later virtually reproduced in the laws of Alberta and Prince Edward Island, and which could serve as a model for the ATIA. Unlike the federal statue, the override in B.C. is general, mandatory, and remarkably broad in the sense it could be applied for any other reason - beyond the environmental ones noted therein - if the public body, information commissioner or court sees a need to do so.

In six provinces and territories, the FOI public interest override is mandatory: Newfoundland and Labrador, the Yukon, Ontario, B.C., Alberta, Prince Edward Island. In all of those statutes, the override is also general, not limited to certain exemptions. It is also general in Nova Scotia, but discretionary there.

In the other statutes, the override is regrettably limited to certain exemptions. In the seven statutes noted above, the general override is proactive, that is, the government must

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release the information if an FOI request has been made for it or not. Nearly all phrase the override in terms similar to ‘a risk of significant harm to the environment or to the health or safety of the public.’

Within the policy advice exemption there is an exception - for an ‘environmental impact statement or similar information’ – in the FOI laws of Newfoundland, PEI, the Yukon, B.C. and Ontario (which the ATIA does not do). As well, the Ontario law’s exemption for economic harms to government includes an exception for ‘environmental testing.’

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Chapter 15 ~ Speaking Out

Whistleblower Protection and FOI

Does the FOI law include whistleblower protection, or is there

a good separate whistleblower protection law?

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The subject of government transparency encompasses a much broader field than freedom of information statutes. Closed municipal meetings, access to court records, ‘libel chill,’ official secrets laws, and other topics – anything which potentially blocks the public’s and media’s right to know the truth - are all subjects within the mandate of FOI advocates.

One of these topics is certainly ‘whistleblower protection.’ Although it is an elaborate and distinct subject, and we can do no more than sketch the outlines of it here, whistleblowing is deeply interwoven and often overlapping with FOI, for several reasons.

A ‘whistleblower’ can be an employee, former employee, or member of an organization, who reports misconduct to people or entities that have the power and presumed willingness to take corrective action. Generally the misconduct is a violation of law, a rule, a regulation and/or a direct threat to public interest, such as fraud, health or safety violations, and corruption. Whistleblowing has a long and varied history, and one report summed up its main characteristics:

Whistleblowers have been held up as conscientious heroes and scorned as traitors and malcontents. Thus, it is not surprising that whistle blower protection – whether it be in the form of common law doctrines, government policy, legislation or collective agreement provisions – will inevitably try to strike a balance. On the one hand, it will try to protect freedom of expression and disclosure in the public interest. On the other hand, it will try to protect the basic duty of loyalty owed by employees to their employers.357

The most common type of whistleblowers are internal, who report misconduct to another employee or superior within their company or public agency. In contrast, external whistleblowers report misconduct to outside persons or entities. (These are both distinct from leakers, who release information anonymously.) In such cases, depending on its severity and nature, they may report the misconduct to lawyers, the media, law

357 Chris Rolfe and Rodney Wilts, Whistleblower Protection: Strategies for B.C. West Coast Environmental Law, Vancouver, 2002 http://www.wcel.org/wcelpub/2002/13961.pdf

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enforcement or watchdog agencies. Some whistleblowers feel they have no option but to resort to the external route when the internal one fails.

Speaking on the federal government’s whistleblowers’ bill (C-11), the former information commissioner John Reid reflected on the 22 years that his office had witnessed government wrongdoings and the attempts to conceal them:

There are some lessons to be drawn from this experience. First, loyalty to superiors is more valued and rewarded than is loyalty to law or the public interest. Second, senior level response to instances of wrongdoing is too often designed to reinforce the value of loyalty by ensuring that superiors survive and subordinates suffer consequences. Third, in most cases of wrongdoing those responsible for addressing the matter are informed in a timely manner but do nothing until the matter becomes public.358

It is well known that the consequences for revealing information without authorization can be grave indeed. These can include disciplinary actions, civil lawsuits, criminal charges, lost employment, demotion or suspension, damaged reputations, slander, social isolation, physical ailments, divorce, family breakup, and bankruptcy. Or worse: during the Somalia scandal that wracked the Canadian military in the mid-1990s, the government assigned bodyguards to a whistleblowing army physician.

Despite all that they suffered, several surveys have found that most whistleblowers say they ‘would do it all again,’ even in the absence of a protection law. With such a law in place, however, still more potential whistleblowers, wavering on a making a choice, might feel empowered to speak out, and this would generally enhance the public interest.

Human rights principles and humanitarian law mandates that whistleblowers should be protected against legal, administrative or employment-related sanctions if they act in ‘good faith.’ Yet in global terms, Canadian legislators have been very slow to respond by passing statutes. This was finally partially rectified in 2005 by passage of the Public Servants Disclosure Protection Act. Whistleblower laws would ideally cover the corporate and non-profit sectors as well as governmental (including, of course, the provincial and municipal), and that Act does not. The rationale for the statute was explained in its preamble:

Recognizing that the federal public administration is an important national institution and is part of the essential framework of Canadian parliamentary democracy;

It is in the public interest to maintain and enhance public confidence in the integrity of public servants;

358 Information Commissioner of Canada, Annual Report 2004-05

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Confidence in public institutions can be enhanced by establishing effective procedures for the disclosure of wrongdoings and for protecting public servants who disclose wrongdoings, and by establishing a code of conduct for the public sector;

Public servants owe a duty of loyalty to their employer and enjoy the right to freedom of expression as guaranteed by the Canadian Charter of Rights and Freedoms and that this Act strives to achieve an appropriate balance between those two important principles;

There are a number of other protections currently available to whistle blowers. These can include common law and statutory protection from being disciplined or fired without ‘just cause’; collective agreements that often include provisions allowing whistleblowing and protection from harassment, usually in narrow circumstances; and government policies to allow whistleblowing (such as the anonymous safety violation ‘SECURITAS’ reporting system in the Transportation Safety Board Regulations).359 Yet statutory law is the indispensable guarantee of protection. One might expect that whistleblowers would be legally aided by the freedom of expression provision in section 2(b) of the Canadian Charter of Rights and Freedoms, but such a prospect seems very uncertain at this time. In perhaps the leading case using a Charter analysis, the court held that the freedom of expression of a public servant was ‘restricted only to the extent necessary to achieve the objective of an impartial and effective public service.’360 However, the court relied primarily on pre-Charter common law in defining the balance between freedom of expression and duty to employers. As one legal analyst summarized it:

Thus, the Charter does not clearly expand the right of government employees to speak out. (The Charter applies to government only, and does not prohibit limits to freedoms that exist under contract or common law. Thus, any protection by the Charter to whistle blowers only applies to public servants). The Charter may have symbolic value, and would likely block any attempt to remove common law protection through legislation. In the appropriate case, it may be possible to expand the scope of Charter protection.361

In designing a whistleblower protection law, many important questions arise, such as: what should its scope be, that is, upon which subjects may one speak out? Should there be separate protections both within an FOI statute as well as a stand-alone whistleblower act? Should whistleblowers be entitled to a portion of the funds saved by the state as a

359 Rolfe and Wilts, op.cit. 360 Haydon v. Canada, Docket T-200-99 (F.C.T.D.) 361 Rolfe and Wilts, op.cit.

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result of their actions? What should the penalties be for those who improperly retaliate against employees? Should the law cover the private sector as well as the public? Several of these topics are discussed below.

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The interplay between the FOI and whistleblowing processes - that is, the dialectic of the approved (by FOI) versus the unapproved release of information - can be intriguing. The two laws’ relationship is reciprocal and complementary; if either an FOI law or a whistleblower statute is strongly effective, it may partially compensate for the failings of the other; conversely, if one law is weak, this necessitates improvements in the other.

If Canadian FOI laws were reformed to meet global standards and if they also worked well in practice, whistleblowing might still be necessary, but likely far less so. If the same results could be achieved by FOI, how much better for all parties to have information released under the FOI process rather than through the conflict-ridden last resort of whistleblowing. A conscientious public servant might understandably perceive that Canada’s 1982 ATIA (or its current application) is often failing to reveal problems of which the public has a need to know. This is especially true with the absence of a strong general public interest override in the Act.362 Even if vital information could be revealed under the Act, the government might never receive an ATIA request for it; and even if it did, records may have been improperly altered or shredded (which has occurred in well-known cases).

Finally, the Act only deals with records; now there is a pernicious trend, often decried by information commissioners, towards ‘oral government,’ whereby sensitive information is only relayed orally and not written down, to avert possible disclosure under the ATIA. (See Chapter 9.) As well, what if offenses such as bribes or assaults occurred but were never recorded - as they rarely would be - in any medium? Moreover, records can sometimes contain errors: there is a common fallacy of placing too much reliance upon records, per se, to reveal the whole truth. All the problems noted above can increase pressures on public servants, who might then see no other option but to verbally reveal the wrongdoings.

In case of a conflict between the two laws, which should prevail over the other? For many reasons and all the factors cited above, especially the trend towards ‘oral government,’ many believe a good whistleblower law should override the FOI statute.

362 Even with a strong FOI law, however, ‘It is often unclear whether disclosure of information on wrongdoing is warranted under the law, even if that law includes a public interest override, and individuals seeking to disclose information in the public interest cannot be expected to undertake a complex balancing of the different interests which might come into play. Providing them with protection helps foster a flow of information to the public about various sorts of wrongdoing.’ - Toby Mendel, Freedom of Information: A Comparative Legal Survey. Second Edition. Revised and Updated. UNESCO: Paris, 2008

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We might consider the intent of parliament expressed in the purpose clause of the ATIA:

2. (2) This Act is intended to complement and not replace existing procedures for access to government information and is not intended to limit in any way access to the type of government information that is normally available to the general public.

Although parliament intended the ATIA to be the ‘last resort,’ some public servants may perceive whistleblowing as the genuine last resort. The reason is that disclosure of government records under the ATIA commonly takes months or years, and large parts of the records are often blacked out. So journalists, necessarily, often circumvent the Act and turn to sources within the public service to receive more complete and timely information about the inner workings of government. Leaking records to the media or whistleblowing is a longstanding tradition while still, of course, not being a means of access ‘normally available to the general public.’363

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The inclusion of whistleblower protection provisions within an FOI statute is a special topic. These provisions typically bar retaliation against FOI directors and staffers, as well as public servants who speak to information commissioners or other appellate bodies on FOI issues. (See the Canadian Provinces section below.) These persons cannot generally be defined as ‘whistleblowers’ per se, for they should be perceived simply as doing their jobs, that is, releasing information within the authorized legal channels. Yet, sadly, they can still suffer reprisals nonetheless.

It was seen as necessary to create these provisions within FOI statutes in Canada instead of within a more general whistleblower law, because enactment of a good general law was too slow, and the needs regarding the FOI subject might also be somewhat specialized. The calls for such protections were not unexpected, for FOI officials are often amongst the least respected or trusted officials in an agency; taking on the task can be seen as a dead-end, career stalling job, one entailing considerable stress and a high turnover rate.

When performing their tasks diligently and to-the-letter, FOI officials might be misperceived by a few as being overzealous or officious, too keen to assist an antagonistic FOI applicant. Then, politicians and their aides, businesspeople or other

363 One example is the leaking of governmental information to Ottawa Citizen reporter Juliet O’Neill. In 2006 an Ontario Superior Court judgment Ontario court quashed as unconstitutional three sections of the so-called leakage provisions in Section 4 of the Security of Information Act, in throwing out RCMP warrants used to search the reporter’s the home and office. If the reporter had applied for the same information through the ATIA, it is virtually unthinkable it would have been released by this route, because of the ATIA’s broad exemptions. Technically this was a case of leaking and not whistleblowing, but same principle applies. This led, at trial, to important debates on the relationship of other statutes to the ATIA. (See Chapter 11.)

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bureaucrats may want to obstruct or punish one for the embarrassing release of information by ‘shooting the messenger,’ i.e., punishing the FOI official. This tension can be onerous enough in large agencies or cities but much worse in smaller, remote or close-knit communities.

For officials, FOI requests for one’s ‘private’ memos can raise discomfort enough, yet far less welcome are those for quasi-personal areas such as travel and expense accounts, bonuses and personal benefits, for some such requests can be misread as rude personal affronts. In fact, such requests for the expenses of Prime Minister Brian Mulroney (1984-1993) were one major reason he turned against the ATIA.364 The FOI official who presses politely but firmly for the applicant’s legal right to these records is rarely received with the warmest regard. But such is the nature of the state’s accountability to taxpayers who must foot the bills.365

Three examples illustrate the obstacles that dutiful FOI officials can face, and

suggest the value of whistleblower provisions for them:

• In 2003 Toronto city hall’s fired FOI director Rita Reynolds filed a wrongful dismissal suit seeking $5 million in damages. ‘When somebody is fired, your career is ruined,’ she said, while expressing alarm at a ‘dramatic move in favour of secrecy and in-camera meetings’ at city hall in the five years since Toronto’s amalgamation. During 12 years with the city, Rita Reynolds handled more than 14,000 FOI requests. When she divulged that key documents used to select the successful bidder to renovate Union Station had been destroyed, she alleged she was berated for not protecting the interests of her superiors over her duties as the city's FOI director. She added that when she refused to go along with attempts by the same bureaucrats to mislead council and the public, she was castigated for not being ‘a team player.’366

• In 1999 an FOI official in Langley Township in British Columbia resigned because of what she called interference from administrators and stonewalling by municipal staff. Sheila Callen said that after a series of documents embarrassing to the administration were released, her superiors began to take a more active role in deciding what should be made public. Ms. Callen added that ‘in many cases, I found it very difficult to get the records from staff in order to review them. . . . The time finally came where I could no 364 Grace, John, Information Commissioner of Canada. Annual Report, 1993-94. Ottawa http://www.infocom.gc.ca/reports/pdf/OIC93_4E.PDF

365 One major problem is that some officials in crown corporations have been appointed due to their business expertise in their private sector work, but unfortunately some cannot accept nor even understand that the same degree of confidentiality should not apply in the governmental sector, a situation that often leads to bitter conflict with the media and other external information seekers.

366 Former privacy chief sues city over firing, by Vanessa Lu. Toronto Star. July 18, 2003

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longer continue in good conscience to be only a puppet just to collect a paycheque.’ The official who held the FOI post before Ms. Callen said she also faced difficulties in releasing municipal documents.367 ‘When I walked into city hall, people would look at me like I was the enemy,’ Cullen told the FIPA bulletin. After leaving, Callen said she had been negotiating with other municipalities but doubted she would be hired due to the bad press. ‘I wouldn’t do it again – not because of the quitting part, which was easy, but because of the press. . . The township tried to discredit me in the Langley papers. The sad part is that it put my family through hell for a week. Because [the chief clerk and FOI head] is a lawyer we had totally different philosophies. I didn’t take any sides. I just did my job and applied the Act.’368 • It was ATIA requests by Globe and Mail reporter Daniel Le Blanc that helped expose the advertising sponsorship scandal and prompted the Gomery inquiry. But the access officials faced a dilemma, as he recalled: ‘Unbeknownst to me, the request caused a commotion within Public Works. An official in the office of then-minister Alfonso Gagliano tried to block the release of the complete list of $144-million in sponsorship funding since 1996. Instead, a second list of sponsorship projects worth only $82-million was put together to send to me. Some of the projects deleted from the full list included contracts later proved fraudulent in court.’369 Fortunately, the bureaucrat in charge of the ATIA branch at Public Works, Anita Lloyd, refused to sign off on the second list. ‘I thought it wasn't legal, and I thought it wasn't ethical,’ she said at the Gomery inquiry about the attempt to give an incomplete list to the Globe. ‘With that stance, Ms. Lloyd allowed me and a colleague, Campbell Clark, to get a look at the entire program and eventually dig into specific projects.’

Canada’s Access to Information Act, 1982:

Within this Act, there is protection for the commissioner and others from legal proceedings, but not for other employment-related retaliation.

Protection of Information Commissioner. 66. (1) No criminal or civil proceedings lie against the Information Commissioner, or against any person acting on behalf or under the direction of the Commissioner, for anything done,

367 Information official quits over Langley interference: Sheila Callen says that staff stonewalled her requests, by Chad Skelton. The Vancouver Sun. July 20, 1999 368 FOI Directors Caught in Crossfire. Bulletin of the B.C. Freedom of Information and Privacy Association. Nov. 1999 http://fipa.bc.ca/library/Publications/FIPA_BULLETIN_SAMPLES/ 369 Daniel Le Blanc, The secret caller who exposed Adscam. Globe and Mail, October 21, 2006

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reported or said in good faith in the course of the exercise or performance or purported exercise or performance of any power, duty or function of the Commissioner under this Act.

Libel or slander (2) For the purposes of any law relating to libel or slander, (a) anything said, any information supplied or any document or thing produced in good faith in the course of an investigation by or on behalf of the Information Commissioner under this Act is privileged […]

There is no other employee protection in the ATIA, per se. In 2005, Parliament passed Bill C-11, the Public Servants Disclosure Protection Act. But it also regrettably amended the ATIA to prohibit the disclosure of certain information (with no mention of a time limit, harms test or public interest override):

ATIA. 16.4 (1) The Public Sector Integrity Commissioner shall refuse to disclose any record requested under this [ATI] Act that contains information (a) obtained or created by him or her or on his or her behalf in the course of an investigation into a disclosure made under the Public Servants Disclosure Protection Act or an investigation commenced under section 33 of that Act; or (b) received by a conciliator in the course of attempting to reach a settlement of a complaint filed under subsection 19.1(1) of that Act. Exception (2) Subsection (1) does not apply in respect of a record that contains information referred to in paragraph (1)(b) if the person who gave the information to the conciliator consents to the record being disclosed. 16.5 The head of a government institution shall refuse to disclose any record requested under this Act that contains information created for the purpose of making a disclosure under the Public Servants Disclosure Protection Act or in the course of an investigation into a disclosure under that Act.

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Public Servants Disclosure Protection Act, 2005:

Sec. 11 prescribes how chief executives must protect the identities of whistleblowers, provide public access to information that was discovered under Sec. 12, and set out recommendations for corrective action. Sec. 42.3 contains strong penalties for retaliations, lying to or obstructing the Commissioner, and destroying records. (See Chapter 15, Penalties.)

Sections 16 to 18 are our primary interest in regards to public information:

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16. (1) A disclosure that a public servant may make under sections 12 to 14 may be made to the public if there is not sufficient time to make the disclosure under those sections and the public servant believes on reasonable grounds that the subject-matter of the disclosure is an act or omission that

(a) constitutes a serious offence under an Act of Parliament or of the legislature of a province; or

(b) constitutes an imminent risk of a substantial and specific danger to the life, health and safety of persons, or to the environment.

(1.1) Subsection (1) does not apply in respect of information the disclosure of which is subject to any restriction created by or under any Act of Parliament, including the Personal Information Protection and Electronic Documents Act. (2) Nothing in subsection (1) affects the rights of a public servant to make to the public in accordance with the law a disclosure that is not protected under this Act.

17. Section 12, subsection 13(1) and sections 14 and 16 do not apply in respect of any information that is special operational information within the meaning of subsection 8(1) of the Security of Information Act.

[….] 18.1. Nothing in this Act relating to the making of disclosures is to be construed as affecting any obligation of a public servant to disclose, report or otherwise give notice of any matter under any other Act of Parliament [e.g., the Access to Information Act].

There are whistleblower protection provisions in at least four other federal statutes:

- Canadian Environmental Protection Agency Act, Sec. 16. - Canada Labour Code, Sec. 147 - Canadian Human Rights Act, Sec. 59 - Pest Control Products Act, Sec. 47

As flawed as the Public Servants Disclosure Protection Act is, the original version was much worse, for it would have allowed the government to keep secret – without explanation - the details of wrongdoing for 20 years (later amended to five years). Prominent whistleblower Alan Cutler has described even the improved bill as ‘fatally and fundamentally flawed.’370

370 David Johansen and Sebastian Spano, Bill C-11: The Public Servants Disclosure Protection Act, LS-482E, Parliamentary Information and Research Service, Library of Parliament, Ottawa, November 2005. This report contains a chronology of Canadian whistleblower codes, policies, and the 1996 Tait report. http://www.parl.gc.ca/common/Bills_ls.asp?lang=E&Parl=38&Ses=1&ls=C11&source=Bills_House_Government

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Mr. Reid stated to a parliamentary committee regarding the original bill, ‘Nothing demonstrates the distrust of the access law, and the ignorance of its effect, more than the amendments to it proposed in the so-called “whistleblowing” bill. . . . I am convinced, as is the whistleblower in the matter which is the subject of your inquiry (Mr. Cutler), that the sponsorship scandal would not have come to light if government had had the benefit of s. 55 of Bill C-11 as a justification for denying access to the early sponsorship audits.’371

Indeed, if real harms could have occurred from such records’ release, they already could have been withheld under some other sections of the ATIA, e.g., regarding national security, trade secrets, privacy, or even policy advice.

In the first annual report from Public Service Integrity Commissioner Christiane Ouimet, it was noted that the new federal office set up to field complaints of wrongdoing from public service whistleblowers received more than 200 inquiries in its first year of operation - but found that most fell outside its legal mandate. The office launched only a handful of formal investigations between April 2007 and March 2008 and discovered no evidence of wrongdoing in any of them 372

Global Commentary

• The Johannesburg Declaration of Principles, adopted in 1995 by a meeting of

experts in international law, national security, and human rights:

‘Principle 15: No person may be punished on national security grounds for disclosure of information if (1) the disclosure does not actually harm and is not likely to harm a legitimate national security interest, or (2) the public interest in knowing the information outweighs the harm from disclosure.

‘Principle 16: No person may be subjected to any detriment on national security grounds for disclosing information that he or she learned by virtue of government service if the public interest in knowing the information outweighs the harm from disclosure.’

• Article 19, Model Freedom of Information Law, 2001:

‘47. (1) No one may be subject to any legal, administrative or employment-related sanction, regardless of any breach of a legal or employment obligation, for releasing information on wrongdoing, or that which would disclose a serious threat to health, safety or the environment, as long as they acted in good faith and in the reasonable belief that the information was substantially true and disclosed evidence of wrongdoing or a serious threat to health, safety or the environment.

371 Information Commissioner of Canada, Annual Report 2004-05 372 Public Sector Integrity Canada website http://www.psic-ispc.gc.ca/doc.php?did=27&lang=eng

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‘(2) For purposes of sub-section (1), wrongdoing includes the commission of a criminal offence, failure to comply with a legal obligation, a miscarriage of justice, corruption or dishonesty, or serious maladministration regarding a public body.

‘48. No one shall be subjected to civil or criminal action, or any employment detriment, for anything done in good faith in the exercise, performance or purported performance of any power or duty in terms of this Act, as long as they acted reasonably and in good faith.’

• African Union, Declaration of Principles of Freedom of Expression in Africa, 2002:

'No one shall be subject to any sanction for releasing in good faith information on wrongdoing, or that which would disclose a serious threat to health, safety or the environment save where the imposition of sanctions serves a legitimate interest and is necessary in a democratic society.'

• Commonwealth Parliamentary Association, Recommendations for Transparent

Governance, 2004:

‘(10.3) Individuals who disclose information pursuant to the access to information law should be protected against sanction and victimization, including for defamation.’

• Privacy International, Legal Protections and Barriers on the Right to Information,

State Secrets and Protection of Sources in OSCE Participating States, by David

Banisar, 2007:

‘Those outside the government including the media and civil society organizations that receive or further publish information that is classified as state secrets, should not be subject to criminal or civil sanctions if there is a public interest in disclosing the information.’

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Other nations

Whistleblower Protection Sections in FOI Laws

There are provisions to protect whistleblowers in six national freedom of information statutes – those of Antigua (Sec. 47), Trinidad (Sec. 38), Macedonia (Art. 38), Moldova (Sec. 7(5)), Montenegro (Art. 18), and Uganda (Sec. 44(1)). The first two in this list prescribe employee protection only in regards to the processing of FOI requests, and the last four apply to general subjects; many believe that the ideal location for broader protections should be within a stand-alone whistleblower law. The strongest general protection within the FOI statute of any Commonwealth nation is found in Uganda:

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44. (1) No person shall be subject to any legal, administrative or employment-related sanction, regardless of any breach of a legal or employment obligation, for releasing information on wrongdoing, or information which would disclose a serious threat to health, safety or the environment, as long as that person acted in good faith and in the reasonable belief that the information was substantially true and disclosed evidence of wrongdoing or a serious threat to health, safety or the environment. (2) For purposes of subsection (1), wrongdoing includes the commission of a criminal offence, failure to comply with a legal obligation, a miscarriage of justice, corruption or dishonesty, or maladministration regarding a public body. 45. Protection of officers. A public officer, information officer or other person acting on the directions of such a person is not subject to any civil or criminal liability for any act done or omitted to be done in good faith in the exercise or performance of any power or duty under this Act.

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Amongst draft FOI bills, there are eleven with whistleblower protection clauses, all but one of these in the Commonwealth: those of Nigeria (Sec. 31), Lesotho (Sec. 61-63), Kenya (Sec. 24), Malaysia (Sec. 44), Malawi (Sec. 11), Sierra Leone (Sec. 48), Sri Lanka (Sec. 34), Tanzania (Sec. 47), Vanuatu (Sec. 51), Ghana (Part IV.7), and Palestine (Art. 10). The last two in this list prescribe employee protection only in regards to the processing of FOI requests.

Nigeria’s draft bill is unique in that it would explicitly allow whistleblowing to override the Official Secrets Act, a right that would be unprecedented in the Commonwealth:

31. (2) Nothing contained in the Criminal Code or the Official Secrets Act shall prejudicially affect any public officer who, without authorization discloses to any person any public record and/or information which he reasonably believes to show. (a) a violations of any law, rule or regulation, (b) mismanagement, a gross waste of funds, fraud, and abuse of authority; or (c) a substantial and specific danger to public health or safety notwithstanding that such information was not disclosed pursuant to the provision of this Act. (3) No civil or criminal proceedings shall lie against any person receiving the information or further disclosing it.

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Kenya’s FOI draft bill again can serve as a model. In its whistleblower protection section, it states that ‘the imposition of any such penalty in contravention of this section shall be actionable as a tort,’ and the provision applies to the private and even the voluntary sector – a broader coverage that would be valuable in Canada and elsewhere too:

24. (1) No person shall be penalized in relation to any employment, profession, voluntary work, contract, membership of an organization, the holding of any office or in any other way, as a result of having made or proposed to make a disclosure of information which the person obtained in confidence in the course of that activity if the disclosure is one which is in the public interest [….]

Canadian commentary

• John Grace, former Information Commissioner of Canada, Toward a Better Law:

Ten Years and Counting, 1994:

‘A new section, 73.1, be added as follows:

s. 73.1(1) It is the Access to Information Coordinator’s duty to respect the letter and purpose of this Act, and to discharge this duty fairly and impartially.

‘(2) The Access to Information Coordinator shall promptly report to the head or deputy head of the institution any instance which comes to his or her knowledge, involving interference with rights or failure to discharge obligations, set out in this Act.

‘(3) The Access to Information Coordinator shall take all reasonable precautions not to disclose the identity of an access requester, the reason for a request or the intended use of requested information except: (i) to the extent reasonably necessary for the proper processing of the access application; (ii) with the consent of the requester; or (iii) if disclosure is permitted by section 8 of the Privacy Act. [….]

‘Access to Information Coordinators may, at any time, seek the independent advice of the Information Commissioner concerning compliance with this section and no coordinator may be penalized in any way for so doing [….]’

• Open Government Canada, From Secrecy to Openness: How to Strengthen

Canada's Access to Information System, 2001:

‘Recommendation 46: The federal government should enact a whistleblower protection law that has the following characteristics: applies to public servants and political staff; creates an entity that has full investigative powers and adequate resources, and that reports only to Parliament; gives whistleblowers the right to complain anonymously to the entity about violations of laws, regulations, government policies or guidelines; protects whistleblowers who reveal their identity from retaliation of any kind if their complaint is proven true; and rewards whistleblowers whose claims are proven true with

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a portion of the financial penalty assessed against the violators of whichever law has been violated.

‘Recommendation 47: In accordance with the above recommended enactment of a whistleblower protection law, the federal government should change its guidelines for public servants to replace the principle of ‘loyalty’ with a duty ‘to obey the law.’’

• West Coast Environmental Law, Whistleblower Protection: Strategies for BC, 2002:

‘Any [whistleblower protection] legislation should include the following:

• Prohibitions on release of information that is publicly accessible: No civil servant should be disciplined for passing on information records that are accessible through Freedom of Information.

• Coverage should extend to all persons, not just government employees: Government provisions should apply to contractors where they are carrying out functions analogous to the civil service. • A duty to disclose illegality: Switching disclosure from a personal initiative into a positive duty will encourage potential whistle blowers to come forward, and should help strengthen protection for whistle blowers.

• Realistic statute of limitations: Too often in other jurisdictions the statute of limitations has been 30 to 60 days. A more realistic limitation would be closer to a year.

• No limitations on the common law. Legislative protection should specifically add to and not detract from common law rights or protections.’

• John Reid, former Information Commissioner of Canada, model ATIA bill, 2005:

‘37.1 Notwithstanding any other Act of Parliament, a person does not commit an offence or other wrongdoing by disclosing, in good faith to the Information Commissioner, information or records relating to a complaint under this Act.’

• Justice Gomery report, Restoring Accountability, 2006:

‘Parliament should be congratulated for passing Bill C-11 before its dissolution on November 28, 2005. [Public Servants Disclosure Protection Act] This bill marks the first time that federal legislation has included any protection for public service whistleblowers. While the passage of this type of protection is a positive step, the Commission has concerns about whether this new legislation will achieve what parliamentarians wanted. [….] The Commission takes the position that the new Act could be significantly improved if it were amended. It suggests that

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• the definition of the class of persons authorized to make disclosures under the Act (“public servants”) should be broadened to include anyone who is carrying out work on behalf of the Government;

• the list of “wrongdoings” that can be disclosed should be an open list, so that actions that are similar in nature to the ones explicitly listed in the Act would also be covered;

• the list of actions that are forbidden “reprisals” should also be an open list;

• in the event that a whistleblower makes a formal complaint alleging a reprisal, the burden of proof should be on the employer to show that the actions taken were not a reprisal;

• there should be an explicit deadline for all chief executives to establish internal procedures for managing disclosures; and

• the Act’s consequential amendments to the Access to Information Act and to the Privacy Act should be revoked as unjustified. The Commission agrees in general with the scheme for disclosure, which has employees disclosing the information to their supervisors or to designated persons in their public service “units.” Disclosure to the Public Sector Integrity Commissioner or to the public is permitted only in exceptional (listed) circumstances.’

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Canadian provinces There are five provincial FOI statutes with whistleblower protection sections – British Columbia, Manitoba, Saskatchewan, Alberta and Prince Edward Island – but only with respect to FOI processes. The broadest scope is found in B.C.’s law:

Whistle-blower protection. 30.3 An employer, whether or not a public body, must not dismiss, suspend, demote, discipline, harass or otherwise disadvantage an employee of the employer, or deny that employee a benefit, because (a) the employee, acting in good faith and on the basis of reasonable belief, has notified the minister responsible for this Act under section 30.2, (b) the employee, acting in good faith and on the basis of reasonable belief, has disclosed to the commissioner that the employer or any other person has contravened or is about to contravene this Act, (c) the employee, acting in good faith and on the basis of reasonable belief, has done or stated an intention of doing anything that is required to be done in order to avoid having any person contravene this Act,

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(d) the employee, acting in good faith and on the basis of reasonable belief, has refused to do or stated an intention of refusing to do anything that is in contravention of this Act, or (e) the employer believes that an employee will do anything described in paragraph (a), (b), (c) or (d).

Commendably, Saskatchewan public employees cannot be penalized for performing their duties under the FOI law, for ‘the giving or withholding in good faith of access to any record pursuant to this Act […]’ The FOI laws of Alberta and PEI prescribe that anyone who takes ‘any adverse employment action’ against an employee who provides information to the Commissioner can be fined a maximum of $10,000.

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With respect to employee protection outside of FOI statutes, there are no stand-alone whistleblower laws in the provinces, but there are protection clauses within several other statutes. In British Columbia, provincial whistleblower protection is currently limited to the Forest Practices Code of BC Act. It applies to private and public sector and prohibits reprisals against a wide variety of persons who take part in Forest Practices Code proceedings (including prosecutions and statutory complaint provisions). Stand-alone private members bills for whistleblowers were introduced into the B.C. legislature in 1994 and 2007 but never passed. Many jurisdictions have whistleblower protection that is broader than the statutory protection available in B.C.’s Forest Practices Code. These include:

• New Brunswick's Employment Standards Act, Sec. 28, which applies to both public and private sector employees, protecting them from reprisals for providing information related to alleged offences. (Yet one legal analyst asserts that ‘Whistleblower protection such as exists in New Brunswick, Northwest Territories or the UK will do very little, if anything, for whistle blowers.’373) • Ontario’s Environmental Bill of Rights, Part VII, wherein any person (not just government employees) can make a complaint to the Ontario Labour Relations Board alleging an employer has taken a reprisal against an employee on a prohibited ground. Protected activities include participating in decision-making about environmental policies or legislation.

373 Rolfe and Wilts, op.cit.

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• The Yukon’s Environment Act. Yukon’s provisions are similar in effect to the Ontario Environmental Bill of Rights. All employees, not just those in the public sector, are protected from reprisals if, for the purpose of protecting the environment, they report wrongful behaviour or adverse environmental impacts to appropriate authorities, or refuse to do work that is contrary to the Act, make complaints or call for investigations under the Environment Act. • Ontario’s Public Service Act, Part 1V, provides avenue of complaint and public reporting of serious government wrongdoing. • The Northwest Territories’ Environmental Rights Act. Potential whistle blowers are protected from employer reprisals when reporting pollution violations. All these efforts of provincial governments, while fair beginnings, need to go much further to be effectual; models could be found in the stand-alone whistleblower statutes noted in the Commentary sections above.

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A FEW NOTES ON STAND-ALONE WHISTLEBLOWER PROTECTION LAWS

This report’s primary focus is whistleblower protection provisions within FOI laws because a full comparison of stand-alone whistleblower statutes in other nations would require a separate report. Australia does not have a federal public interest disclosure law, but most of its states do and these laws protect all persons reporting wrongdoing, not just employees; Japan and South Africa passed whistleblower legislation, the latter nation simultaneously with its access law. Yet I will make an exception for what may be the most important issue: the ‘scope’ of which offenses one may blow the whistle upon and of which entities are covered. We might consider the statutes of Canada, the United Kingdom, and the United States, for the latter two models might be the most influential on this nation.374

Canada - Public Servants Disclosure Protection Act, 2005

8. This Act applies in respect of the following wrongdoings in or relating to the public sector:

(a) a contravention of any Act of Parliament or of the legislature of a province, or of any regulations made under any such Act, other than a contravention of section 19 of this Act;375

374 In both these nations – unlike in Canada - the stand-alone whistleblower statute does not amend the FOI law, nor visa versa.

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(b) a misuse of public funds or a public asset;

(c) a gross mismanagement in the public sector;

(d) an act or omission that creates a substantial and specific danger to the life, health or safety of persons, or to the environment, other than a danger that is inherent in the performance of the duties or functions of a public servant;

(e) a serious breach of a code of conduct established under section 5 or 6;376 and

(f) knowingly directing or counselling a person to commit a wrongdoing set out in any of paragraphs (a) to (e).

The scope of topics in the Canadian law is the most limited of the three statutes, which seems surprising and disappointing as it was the last of the three to be passed; perhaps future amendments to this Act could include positive features of the other nations’ laws.

There is one good provision in Canada that both the UK and the U.S. lack: Sec. 8 (f), regarding the influence on other persons to commit offenses. As well, the UK law omits subsections 8 (b) and (c), regarding waste and mismanagement; the American law does include these terms, but there the offenses must be ‘gross,’ which is a narrower prescription than that in the Canadian law.

Canada is unique in including a generous escape clause, in Sec. 8(d), exempting ‘a danger that is inherent in the performance of the duties or functions of a public servant’ from the scope of ‘wrongdoing,’ and one wonders how this would be applied in practice (for example, if it might be invoked by police defending a wider use of Taser stun guns).

There are some restrictions upon whistleblowers in the law. For example, public servants may not disclose to the Public Sector Integrity Commissioner cabinet confidences, or information subject to solicitor-client privilege, nor publicize records covered by privacy law or the Security of Information Act.

‘Public sector’ is defined in the Act as the departments, crown corporations and other public bodies named in Schedule I to the Financial Administration Act. The definition is far too narrow in regards to quasi-governmental bodies, as it is with the Access to Information Act (noted in Chapter 4).

375 ‘Section 19. No person shall take any reprisal against a public servant or direct that one be taken against a public servant.’ 376 ‘Sec. 5. (1) The Treasury Board must establish a code of conduct applicable to the public sector. […] 6. (1) Every chief executive shall establish a code of conduct applicable to the portion of the public sector for which he or she is responsible.’

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Still, the Act’s preamble commits the government to establishing a ‘Charter of Values of Public Service,’ which will cover employees not only in the federal public service but in all of the federal public sector. As well, under Sec. 52, those entities excluded from the definition of ‘public sector’ in the Act must establish whistleblowing procedures that Treasury Board regards as ‘similar to those set out in this Act.’

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United Kingdom - Public Interest Disclosure Act, 1998

43B. Disclosures qualifying for protection

(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following —

(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged, or

(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

(2) For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory.

(3) A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it.

This UK statute includes five aspects missing from the whistleblower laws of Canada and the U.S. First, there is the preventative concept of averting ‘likely’ harms, in subsection 43B(1)(a) (b) and (c). ‘A miscarriage of justice’ is a welcome feature in 43B(1)(c) as is the logic of 43B(3). Protection for those blowing the whistle on the ‘concealment’ of

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wrongdoing, in 43B(1)(f), seems an obvious necessity. Finally, 43B(2) advisably covers wrongdoings committed abroad. The statute has its critics:

The U.K. model has been criticized on numerous grounds. It has been stated that the onus rests too heavily with the whistle blower to show that they should be protected, as opposed to the onus resting with the employer to show that the alleged whistle blowing was false, not in the public interest, or merely self-serving. In addition the legislation is seen as weak and confusing, and adds little to no protection than what existed at common law.377

Yet the scope of entity coverage is wider than that in Canada’s law, and applies equally to all employers in the public and private sectors.

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United States - Whistleblower Protection Act, 1989

Sec. 1213. Provisions relating to disclosures of violations of law, gross mismanagement, and certain other matters

(a) This section applies with respect to--

(1) any disclosure of information by an employee, former employee, or applicant for employment which the employee, former employee, or applicant reasonably believes evidences--

(A) a violation of any law, rule, or regulation; or (B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;

if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs; […]

There are two valuable features in the American statute missing in the Canadian and UK ones: protection for former and prospective employees, and permission to speak out on ‘abuse of authority.’ There is no citation of the environment in this U.S. Act, but there whistleblower protections for that topic in at least seven other American statutes.378

377 Rolfe and Wilts, op.cit. 378 The first U.S. environmental law to include an employee protection was the Water Pollution Control Act of 1972, also called the Clean Water Act. Similar protections were included in subsequent federal environmental laws including the Safe Drinking Water Act (1974), Resource Conservation and Recovery Act (also called the Solid Waste Disposal Act) (1976), Toxic Substances Control Act (1976), Energy Reorganization Act of 1974 (through 1978 amendment to

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The scope of the 1989 law is regrettably limited to those who work for the federal government. Yet in addition, most American states have very robust whistleblower protection laws for the public and private sector, which are well worth reviewing. Overall in the U.S., such protections have a long history: the first American law adopted specifically to protect whistleblowers was the Lloyd-La Follette Act of 1912, which guaranteed the right of federal employees to furnish information to the United States Congress. In December 2007, the U.S. Senate unanimously passed the Whistleblower Protection Enhancement Act of 2007. The House has passed an even stronger version, and negotiations on putting the improvements into force are ongoing, although the president has threatened a veto.379 The New York Times noted that: ‘The House would extend this protection to private government contractors, as well - a rich area of abuse laid bare in the management of the Iraq war. Clearly, these times demand the strongest possible whistle-blower law.’380

CANADIAN WHISTLEBLOWERS AT RISK

Three well-known examples vividly illustrated the need for a strong whistleblower law, and they influenced passage of the Public Servants Disclosure Protection Act in 2005:

• The federal privacy commissioner George Radwanski was forced to resign in 2003 over extravagant expenses; he and his former chief of staff were later charged with fraud and breach-of-trust, and are currently at trial.381

An all-party Commons committee concluded Radwanski misled MPs about his expenses and an altered document, and the Auditor General - who described the commissioner’s stint as a ‘reign of terror’ - later issued a scathing report on his financial practices, and called in the RCMP. The Commons committee heard that Radwanski told a staff meeting that any whistleblowing ‘rat’ in the office would find his or her career in the civil service was over. Mr. Radwanski denied making the comment and all wrongdoing.

protect nuclear whistleblowers), Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or the Superfund Law) (1980), and the Clean Air Act (1990). 379 For updates, see http://www.whistleblowersblog.org/tags/legislative-updates/ 380 Editorial: Protection for Endangered Whistle-Blowers. New York Times. Dec. 27, 2007 http://www.nytimes.com/2007/12/27/opinion/27thu3.html?ref=opinion 381 RCMP charge ex-privacy czar with fraud, breach of trust, by Kelly Patrick, with files from Kathryn May. The Ottawa Citizen. March 16, 2006

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In June 2003, about 50 employees signed their names to a letter that was hand-delivered to Radwanski at his desk, asking him to step aside until the storm of controversy over his conduct was settled. Then, in a hitherto unimaginable spectacle in Ottawa, they staged a street protest calling for whistleblowing laws to protect them. Many wore scarves across their mouths to symbolize being gagged without the protection of whistleblower legislation.382

• Allan S. Cutler is a former Canadian civil servant notable for his role in the advertising sponsorship scandal by acting as the whistleblower who detected some irregularities in the Canadian sponsorship program. Mr. Cutler both helped trigger the scandal revelations and lost his job.

He had been working for the Ministry of Public Works and Government Services, where he was responsible for negotiating the terms and prices of federal advertising contracts. At the 2005 Gomery Commission inquiry, Mr. Cutler claimed that commissions were paid to agencies for no apparent services, contracts that were approved by a senior official who was later imprisoned for fraud in the matter.

• In 2004 the National Post revealed a secret audit that detailed misuse of millions of dollars by the RCMP of its own members' pension fund. The same day the story was published, RCMP Commissioner Giuliano Zaccardelli announced the force swould pay back to the pension fund the millions misused. An investigation by the Auditor-General found millions of dollars inappropriately charged to the pension and insurance plans. No one was subsequently charged.

A subsequent investigation conducted by a former head of the Ontario Securities Commission strongly criticized the management style of Commissioner Zaccardelli, and found that RCMP members and employees who attempted to address the pension fund issue suffered ‘career damage’ for doing so. Interim RCMP Commissioner Beverley Busson promised that individuals who the upper ranks attempted to silence would be thanked and recognized.

382 Privacy workers to Radwanski: Resign: Scandal bringing 'ridicule' to department, by Kathryn May. Kingston Whig - Standard. June 21, 2003

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Chapter 16 ~ A Regrettable Necessity

Penalties

Are there penalties in the FOI law for officials destroying or falsifying records,

improperly delaying replies, or for other non-compliance?

Although the topic of penalties may be the least agreeable in discourse on freedom of information issues, it must be faced directly. The amendment passed in 1999 to the Access to Information Act that would penalize those who destroy records was most commendable. Yet, as asserted in the commentaries below, transparency laws need to extend well beyond that problem, to as well discourage response delays and other means of obstructing the FOI process. The current penalties for obstructing Canada’s information commissioner are also too unsubstantial. In a reformed ATIA, deterrence measures must be drafted with sensitivity and caution, for the issues are not black-and-white but require consideration on a graduated scale. There could be, as well, a careful interpretation of each circumstance; for example, in sentencing, a judicial authority might consider whether an official illegally shredded documents from a genuine belief he or she was serving the public interest (e.g., protecting national security) or merely serving oneself (e.g., destroying evidence of financial misdeeds).

Should it matter, too, if wrongdoing was accidental or deliberate, assuming this can even be established? Should unawareness of the law be a mitigating factor in the earlier stages? But if so, how much misconduct could be committed in such a transitional period by those pleading ignorance? Should one official or the larger entity be held responsible for wrongdoing, and who should pay the fine? These are very difficult questions, upon which my views have evolved much over the past 15 years.

As many longtime FOI applicants know, the response of several government agencies to FOI requests are determined not by their legal or ethical obligations, but instead cynical calculations of what one ‘can get away with,’ logistically, financially and politically. Several officials violate the letter or spirit of the ATI Act without an iota of conscience or remorse. A very few indeed are even proud of having done so, and may regard it as incomprehensible or unjust to be punished for acting according to their own private vision of ‘the public interest.’ For example, the most powerful bureaucrat involved (and later imprisoned) in the Quebec sponsorship scandal testified that he stopped creating records so as to avert their disclosure under the ATIA; this nation was at war for its political unity and survival, this former army officer claimed, and ‘you don’t give away your battle plan to the enemy.’ For such officials, education or persuasion seems futile, and what else but external constraints could have any effect on their conduct, or act as a deterrent to others?

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It has been repeated throughout this report that, beyond statutory changes, a strong message to promote a culture of transparency must come from the top. This is an essential start but can only go so far. Although prison terms for some FOI offenses are indeed prescribed in several nations (see below), this might at times seem too severe. Yet some means of deterrence is indispensable, beyond ineffectual means such as verbal reprimands or letters of rebuke placed on one’s personnel file. Apologists may plead that justice should be tempered with mercy and warn that any prison term can effectively ruin an official’s life. But to forgive everything afterwards is to permit everything in advance; those who deliberately choose to violate the law must accept some consequences, and others contemplating the same actions must be discouraged.

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• Canada’s Access to Information Act, 1982. Amendment in 1999:

67. (1) No person shall obstruct the Information Commissioner or any person acting on behalf or under the direction of the Commissioner in the performance of the Commissioner’s duties and functions under this Act. (2) Every person who contravenes this section is guilty of an offence and liable on summary conviction to a fine not exceeding one thousand dollars.

67.1 (1) No person shall, with intent to deny a right of access under this Act, (a) destroy, mutilate or alter a record; (b) falsify a record or make a false record; (c) conceal a record; or (d) direct, propose, counsel or cause any person in any manner to do anything mentioned in any of paragraphs (a) to (c).

(2) Every person who contravenes subsection (1) is guilty of (a) an indictable offence and liable to imprisonment for a term not exceeding two years or to a fine not exceeding $10,000, or to both; or (b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding six months or to a fine not exceeding $5,000, or to both.

• The Public Servants Disclosure Protection Act, 2005:

42.3. Every person who knowingly contravenes section 19 [i.e., on reprisals against whistleblowing public servants] or contravenes any of sections 40 to 42 [i.e., on lying to or obstructing the Public Sector Integrity Commissioner, destroying records] commits an offence and is guilty of

(a) an indictable offence and liable to a fine of not more than $10,000 or to imprisonment for a term of not more than two years, or to both that fine and that imprisonment; or

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(b) an offence punishable on summary conviction and liable to a fine of not more than $5,000 or to imprisonment for a term of not more than six months, or to both that fine and that imprisonment.

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Global Commentary

• Article 19, Model Freedom of Information Law, 2001:

‘49. (1) It is a criminal offence to wilfully: – (a) obstruct access to any record contrary to Part II of this Act; (b) obstruct the performance by a public body of a duty under Part III of this Act; (c) interfere with the work of the Commissioner; or (d) destroy records without lawful authority. / (2) Anyone who commits an offence under sub-section (1) shall be liable on summary conviction to a fine not exceeding [insert appropriate amount] and/or to imprisonment for a period not exceeding two years.’

• The Carter Center, Access to Information, a Key to Democracy, 2002:

Key Principles. ‘Are there firm timetables laid down for providing information and strong penalties for failure to meet them?’

• Commonwealth Secretariat, Model Freedom of Information Bill, 2002:

’44 (2) A person who wilfully destroys or damages a record or document required to be maintained and preserved under [sec.44] subsection (1), commits an offence and is liable on summary conviction to a fine of [........] and imprisonment for [……].

‘(3) A person who knowingly destroys or damages a record or document which is required to be maintained and preserved under subsection (1) while a request for access to the record or document is pending commits an offence and is liable on summary conviction to a fine of [........] and imprisonment for […….].’

• Commonwealth Human Rights Initiative, Open Sesame: Looking for the Right to

Information in the Commonwealth, 2003:

‘The law should impose penalties and sanctions on those who wilfully obstruct access to information. Penalties for unreasonably delaying or withholding information are crucial if an access law is to have any real meaning.’

• Commentary by Article 19 on draft Paraguayan FOI bill, 2004:

‘Article 19 is of the view that, absent a deliberate intent to obstruct access to information, individuals should not be singled out for fines and other penalties, as this can lead to

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scapegoating within an institution. Rather, the relevant public authority should bear responsibility as an entity.’383

‘Article 19 supports criminal penalties for those who obstruct access, but only where such penalties respect the basic criminal rule requiring mental, as well as physical responsibility (mens reas). We therefore recommend that this article be amended to provide for liability only where the obstruction was willful or otherwise done with the intention of obstructing access.’384

• World Bank, Legislation on freedom of information, trends and standards, 2004:

‘Other key measures include … sanctions for obstruction of access.’

• Transparency International, Tips for the Design of Access to Information Laws,

2006:

‘Sanctions for secretive institutions: Sanctions should penalize the institutions that have failed to respond to requests for information, along with the heads of these agencies, to avoid the possibility of individual, lower rank civil servants being penalized – the burden of responsibility should rest with those with the power to make change.’

• Organization for Security and Co-operation in Europe (OSCE), Access to

information recommendations, 2007:

‘There should be sanctions available in cases where it is shown that an official or body is deliberately withholding information in violation of the law.’

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Other nations I have reserved the penalties topic for the report’s end, because it could be the one FOI subject on which it might be the least necessary for Canada to follow the rest of the world closely. Corrective justice is culturally and political determined in each nation, and styles of judicial interpretation vary dramatically amongst domestic legal systems.

383 Memorandum on the Law Commission of the Republic of Bangladesh Working Paper on the Proposed Right to Information Act 2002. By ARTICLE 19, London, 2004 http://www.article19.org/pdfs/analysis/bangladesh-right-to-information-act.pdf

384 Memorandum on the draft Paraguayan Free Access to Public Information Law. By ARTICLE 19, London, 2004 http://www.article19.org/pdfs/analysis/paraguay-access-to-information-feb-2004.pdf Nepal’s draft FOI bill also makes generous allowances for ‘good intentions.’

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Several of the penalties in the FOI legislation of other nations may appear extreme or even unsettling to Canadian public servants. I would never suggest that Canadian law should replicate all of what appears below, but it is at least worthwhile to note the legal reality in the rest of the world.385 Other nations take the right to know much more seriously than in Canada. For example, in Uganda, public officers who conceal information will face prosecution, the Director of Information Kagole Kivumbi said in April 2008. Quoting section 46 of the Access to Information Act, he said a person who intends to deny anyone the right to information commits an offence and is liable to imprisonment.386 In the United Kingdom, government departments and other public bodies were warned in December 2007 that they face legal action unless they comply fully with the Freedom of Information Act. UK Information Commissioner Richard Thomas, said 2008 would be the year when he would finally clamp down on public organisations that failed to disclose information correctly.

‘Those who know they need to get their act together will be hearing from us,’ Mr. Thomas told The Observer. ‘We've had to neglect some of our work in this area because all of our work has gone into complaint handling, but we can ultimately serve enforcement notices and we'd like to be more effective in targeting those public authorities who need a mixture of persuasion and a stick. Watch this space.'387

In newer democracies, such as those in Eastern Europe, strict penalties for FOI violations are a clear measure of how seriously their public and legislators value this democratic right; such penalties likely arise not so much from a desire to punish as from a wish to never again fall backward into the darker times when secrecy prevailed.

______________ Out of 68 jurisdictions with freedom of information laws, 31 contain some kind of penalties for obstructing the FOI process: Antigua, Armenia, Bulgaria, Guangzhou and Shanghai municipalities (China), Croatia, Ecuador, Ireland, Macedonia, Mexico, Moldova, Montenegro, Panama, Philippines, Pakistan, Poland, Romania, Serbia, Slovakia, Slovenia, Tajikistan, Thailand, Turkey, Uganda, Ukraine, Zimbabwe; Canada, India,

386 Uganda: Officers to Face Court for Concealment. Africa News, April 29, 2008

387 Vow to get tough on 'right to know': Whitehall faces legal clampdown over failure to disclose information, by Jamie Doward, The Observer (England), December 30, 2007. The article added that: ‘So far only a handful of public bodies have been served with enforcement notices, but the commissioner's new hard line marks a shift in approach that could be embarrassing for Whitehall departments. . . . Mr. Thomas said there was a need for more central and local government departments to be 'proactive' in releasing information and that this would be another area his office would be investigating in 2008.’

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Jamaica, Scotland, St. Vincent and the Grenadines, Trinidad and Tobago, United Kingdom. (The last seven on this list are in the Commonwealth.) From 29 draft FOI bills, 15 contain some kind of penalties for obstructing the FOI process: Abkhazia, Bolivia, Indonesia, Mongolia, Nepal, Paraguay; Bangladesh, Guyana, Kenya, Malaysia, Papua New Guinea, Sierra Leone, Sri Lanka, Tanzania, Vanuatu. (The last nine on this list are in the Commonwealth.) Forms of penalties: • The law imposes fines for obstructing the FOI process. In the FOI laws of 20 nations (11 of these Commonwealth) In the draft FOI bills of 14 nations (nine of these Commonwealth) • The law imposes prison terms for obstructing the FOI process. In the FOI laws of 15 nations (eight of these Commonwealth) In the draft FOI bills of ten nations (eight of these Commonwealth) Breakdown of the ‘obstructionism’ concept into six rough categories (some nations

appear in more than one category): • The law imposes penalties for delaying replies to FOI requests. In the FOI laws of six nations (one of these Commonwealth) In the draft FOI bills of four nations (all Commonwealth) • The law imposes penalties for unauthorized record destruction. In the FOI laws of 15 nations (11 of these Commonwealth) In the draft FOI bills of nine nations (seven of these Commonwealth) • The law imposes penalties for altering records sought by FOI applicants. In the FOI laws of nine nations (six of these Commonwealth) In the draft FOI bill of one Commonwealth nation • The law imposes penalties for interference or non-cooperation with an information commissioner or equivalent. In the FOI laws of five nations (three of these Commonwealth) In the draft FOI bills of five nations (four of these Commonwealth) • The law imposes penalties for concealing records sought by FOI applicants.

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In the FOI laws of 11 nations (five of these Commonwealth) In the draft FOI bill of one Commonwealth nation • The law imposes penalties for general unspecified obstructionism or other actions not cited in the above categories. In the FOI laws of 18 nations (two of these Commonwealth) In the draft FOI bills of 14 nations (eight of these Commonwealth)

______________ When comparing penalties for FOI obstructionism, one might distinguish quality from quantity of time, e.g., that two years in a Russian or Ugandan jail would be a very different experience than the same period in a Canadian prison. As well, when the level of a certain fine (after converted to Canadian dollars) may appear far too modest to serve as a deterrent - for some commentators - one must consider the relative earnings and cost of living in other nations, e.g., that the per capita income of the average Romanian citizen is six times less than that of an average Canadian.

Fines for obstructing the FOI process can range widely across the world. The FOI laws of Ecuador, Philippines, the Russian Federation, and Sierra Leone prescribe the loss of salary for certain periods.

Several other nations - such as Bulgaria, Tajikistan and Ukraine - treat the problem of delays much more sternly than in Canada, which some ATIA applicants here might appreciate. For example, in India’s statute, Sec. 20(1), if an FOI request is not fulfilled within the mandated period, the Information Commissioner ‘shall impose a penalty of 250 rupees [$65 Can.] each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed 25,000 rupees [$6,500 Can.].’ There are also daily penalties for requests ‘obstructed in any manner’ in the draft FOI bill of Bangladesh. Although 15 nations have penalties for record destruction, the provision in the draft FOI bill of Kenya is the most detailed, which might be useful for the Canadian ATIA:

23. (3) Any person who destroys information, whether or not the information was, at the time it was destroyed, the subject of a request, or of a complaint under this Act; and does so intending to prevent its disclosure of such information in accordance with the requirements of this Act or in circumstances in which it was foreseeable that such disclosure would thereby be prevented, commits an offence and is liable to a fine not exceeding two hundred thousand shillings [$3,200 Can.] or imprisonment for a term not exceeding two years or both.

There are other FOI penalties of interest, observed here in no particular order:

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• In Mexico’s admirable FOI law, officials can be penalized for ‘Fraudulently classifying information that does not fulfill the characteristics indicated by this Law.’ (Art. 63, part IV) Ukraine’s FOI law also imposes penalties for ‘ungrounded categorisation of information as restricted access [classified] data.’ (Art. 47) Such a principle would be welcome in the Canada’s ATIA for officials who misclassify cabinet records to exclude them from the Act’s scope. As well, Mexico prohibits ‘Intentionally providing incomplete information in response to a request for access’ (Art. 63, part VI)

• Serbia’s FOI law has a number of distinctive features, including fines of between 5,000 and 50,000 dinars [$100 - $1,000 Can.] that shall be imposed upon the authorized person if he or she ‘discriminates against a journalist or a media outlet’; fails to make a copy of the document in the language requested; ‘refuses to provide the applicants with the necessary assistance for exercising their rights’; or fails to publish a directory with the prescribed data on its work. (Art. 46-48)

• In Macedonia’s FOI statute, the ‘responsible person’ shall be fined 20,000 to 40,000 denars [$5,000 - $10,000 Can.] for failing to provide requesters with ‘premises needed for insight into information requested’ (e.g.. a reading room); the same person shall be fined 5,000 to 30,000 denars [$1,250 - $7,500 Can.] for not drafting the annual report on the law’s implementation and submitting it to the commissioner. (Sections 43(1), 45) • The Code of the Philippines extends culpability beyond an agency: ‘Private individuals who participate in conspiracy as co-principals, accomplices or accessories, with officials or employees, in violation of the Code, shall be subject to the same penal liabilities as the officials or employees and shall be tried jointly with them.’ (Rule 11) • In China, the FOI law of Shanghai municipality includes ‘administrative punishment’ for illegally collecting fees, not updating the agency’s guidebook, and ‘failure to implement the obligation to make certain government information public on their own initiative.’ (Art. 31)

• In the draft FOI law of Sierra Leone, when the Information Commission finds that a public body is guilty of ‘persistent noncompliance’ with the Act, the head of the public body ‘shall be liable to a fine of not less than 100,000 leones, which shall be recoverable from his or her salary or if they are no longer drawing a salary, via a lien on their property.’ (Section 46 (3))

• In Slovakia, ‘Any person knowingly issuing or disclosing untrue or inaccurate information’ is guilty of an offense. A fine up to SKK 50.000 [$25,000 Can.] may be imposed and ‘relevant activity banned for up to two years.’

• The draft FOI bill of Nepal, although including penalties, is generous in one regard: ‘Art. 15. Immunity for functions with Good Intention: The chief executive shall not be liable for any punishment for any functions/activities in pursuance of this Act with good intention.' (Quebec’s law makes a similar point.)

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• The Russian Federation is a special example. The nation has not yet passed a distinct and comprehensive freedom of information statute, and is unlikely to do so soon. Yet, writes lawyer Savintseva Marina, penalties are noted in Article 140 of the Criminal Code of the Russian Federation, ‘Refusal to Citizen in the Providing of Information’:

For the illegal refusal by official in providing in documents and materials in prescribed order that are directly concern citizen’s rights and freedoms or giving the wittingly and incomplete information and if these deeds injured to citizen’s rights and legal interests determined the fine at the rate of 200.000 rubles [$8,670 Can.] or at the rate salary or other profit of convict for the 18 months period or deprive of right to take up special posts or activities for the period from 2 till 5 years.388

Canadian commentary

• Bill C-225, the Right to Information Act, introduced by MP Ged Baldwin, 1974:

‘10. (1) Every person who violates or fails to comply with any provision of this Act or any order made by a judge pursuant to this Act is guilty of an indictable offence and is liable on conviction to imprisonment for any term not exceeding five years. (Explanatory note: No fine is provided for, as the government would simply pay a fine out of public monies.)'

• Open Government Canada, From Secrecy to Openness, 2001:

‘Recommendation 45: The federal government should amend all laws that concern government information management to include an anti-avoidance measure that makes it a violation to fail to uphold the spirit and intent of each law.’

• Bill C-201, introduced by NDP MP Pat Martin, 2004:

‘67.2 (1) A person who wilfully obstructs any person’s right of access under this Act to any record under the control of a government institution is guilty of an offence.

(2) No person who destroys information in accordance with the Library and Archives of Canada Act commits an offence under subsection (1).

388 Access to Information in Russia. By Savintseva Marina, program coordinator of Access to Information, of Transparency International–Russia, June 2006. http://www.transparency.org.ru/doc/ACCESS_TO_INFORMATION_IN_RUSSIA_2006_01252_6.doc (Also see the Administrative Code of the Russian Federation)

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(3) Every person who contravenes subsection (1) is guilty of an offence and liable (a) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine not exceeding ten thousand dollars, or to both; and (b) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding five thousand dollars, or to both.’

• Government of Canada discussion paper, Strengthening the Access to Information

Act, 2006:

'Obviously, there must be a distinction between poor record keeping and intentional, bad (or even criminal) behaviour. Penalties for public servants who fail to create a record could range from disciplinary measures through an administrative monetary penalty to a criminal offence. Whatever sanction is applied, it must be commensurate to the misbehaviour.

‘It may be appropriate to make it a criminal offence to fail to create a record if that is done for the purpose of preventing anyone from finding out about a particular decision or action (whether that decision or action was itself improper or not), or to prevent anyone from obtaining access to a record of the decision or action through the Access to Information Act. Such a sanction would be in line with the current sanction provision in section 67.1 of the ATIA concerning the destruction, altering or concealing of a record for the purpose of denying access. On the other hand, good information management practices must be learned, including rules or standards about when records should be created…. ’

• Justice Gomery report, Restoring Accountability, 2006:

‘Recommendation 16: The Government should adopt legislation requiring public servants to document decisions and recommendations, and making it an offence to fail to do so or to destroy documentation recording government decisions, or the advice and deliberations leading up to decisions.’ [The report advises both amendments to the ATIA, and additional 'free-standing legislation' for transparency on 'the disbursement of public funds.']

Canadian provinces The FOI laws of all provinces and territories – expect for Nova Scotia and New Brunswick – have penalties for obstructing or misleading the information commissioner. These range from fines of $200 to $2,500 in Quebec (or $50 per day); $1,000 in Saskatchewan, $5,000 in Newfoundland, the Yukon, Ontario, British Columbia, and the Northwest Territories; $10,000 in Alberta and Prince Edward Island; and a daunting $50,000 in Manitoba. For this offense, wrongdoers can be imprisoned in two provinces - for three months in Saskatchewan, and six months in Newfoundland. By contrast, the ATIA’s current $1,000 penalty for obstructing the federal Information Commissioner is far too anemic, even it was enforced.

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Only five FOI statutes contain penalties for disobeying an order of the Commissioner or a court: the Yukon, Ontario, B.C., Alberta and PEI. In regards to not preserving records sought by FOI applicants, the access statutes of eight provinces and territories contain penalties: Nova Scotia, Newfoundland and Labrador, Quebec, the Yukon, Manitoba, Alberta and Prince Edward Island. Quebec’s statute has the broadest scope, insofar that Sec. 158 prescribes that: ‘Every person who knowingly denies or impedes access to a document or information to which access is not to be denied under this Act is guilty of an offence […]’ (Yet fines are picayune, ranging from $100 to $1,000; perhaps bad publicity could aid as a deterrent.) Positively, the Quebec law extends beyond record alteration or destruction, to potentially cover a wide range of obstructionist practices. The Commissioner may institute penal proceedings for an offence under the law. Yet there is a potential escape cause in the Quebec law: ‘163. An error or omission made in good faith does not constitute an offence within the meaning of this Act.’ The two most recently-passed FOI laws, those of Alberta and Prince Edward Island have nearly identical records preservation sections; these are the next broadest in scope after Quebec, as being the only ones that forbid agencies to ‘conceal’ sought records. The PEI statute prescribes a $10,000 fine for those who ‘alter, falsify or conceal any record, or direct another person to do so.’ Only Nova Scotia and Newfoundland prescribe jail terms (both six months), for record alteration in the former, destruction in the latter. In the provinces, fines for record management wrongdoings range from $100 in Quebec, $2,000 in Nova Scotia, $5,000 in Newfoundland, $10,000 in Alberta and PEI, and the stiff penalty of $50,000 in Manitoba. Regrettably, there are no provisions for record management or preservation in the FOI statutes of Ontario, British Columbia, Saskatchewan, New Brunswick and the Northwest Territories; hopefully some day this will change. (Yet provinces have archival laws too, which may help in this regard.) Most provincial FOI laws also have penalties for improperly disclosing or otherwise misusing personal information.

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Chapter 17 – Pushing the Envelope

Miscellaneous Features

Are there any more positive features of other FOI laws and

best FOI practices statements that could be adopted in Canada’s ATI Act?

In the introduction to this report, it was proposed the government of Canada amend its 1982 Access to Information Act so as to at least raise it to the best current standards of other FOI laws in the Commonwealth. Yet it is also critical for legislators to think outside of the Commonwealth ‘box,’ to exercise one’s political and legal imagination, and consider adapting progressive features of other FOI statutes, if even in modified forms. Here is a compendium of miscellaneous FOI features that did not fit in the topic categories of other chapters, and which could be contemplated for a reformed ATIA.

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FOI Purpose Statements

A purpose section in a freedom of information law is extremely important; more than just political rhetoric, the stated principles can provide general guidance to commissioners or judges in making their rulings. In the global context, the scope of Canada’s Access to Information Act is relatively limited:

2. (1) The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.

Others go much further. The purpose of the draft FOI bill of Sierre Leone, stated in Sec. 1.2, is to ‘ (ii) give effect to the fundamental Right to Information, which will contribute to strengthening democracy, improving governance, increasing public participation, promoting transparency and accountability and reducing corruption.’ What arguments could be made against such goals?

The preamble of Indonesia’s 2008 FOI law is unique:

Considering: a) that information is a basic need of every person to develop their personality as well as their social environment, and is a significant part of the national security; b) that the right to obtain information is a human right and transparency of public information is a significant characteristic of a democratic

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state that holds the sovereignty of the people in high esteem, to materialize good state management; [….]

There are also very strong purpose statements in the FOI laws of New Zealand, Kosovo, Japan, Moldova, and the draft FOI bills of Bangladesh and Malaysia. The purpose of Uganda’s FOI law, as stated in Sec. 3(e), is ‘to empower the public to effectively scrutinise and participate in Government decisions that affect them.’ The draft FOI bill of Kenya asserts, in Sec. 3(b), that the law is designed to promote:

(i) public participation in democratic and development processes; (ii) greater accountability of public and private authorities (iii) better informed discussions and the free interchange of opinions [….]

The overall purpose statement of Finland’s freedom of information law is amongst the world’s best, emphasizing democratic powers, and would be an asset to Canada’s ATIA:

Section 3. Objectives. The objectives of the right of access and the duties of the authorities provided in this Act are to promote openness and good practice on information management in government, and to provide private individuals and corporations with an opportunity to monitor the exercise of public authority and the use of public resources, to freely form an opinion, to influence the exercise of public authority, and to protect their rights and interests.

Some nations might have thought such declarations superfluous, since similar FOI principles are stated in their national constitutions. (See Chapter 1).

Within Canada, the best purpose section is found in Nova Scotia’s FOI statute (1977), which was the first to be passed in this country:

2. The purpose of this Act is [….] (b) to provide for the disclosure of all government information with necessary exemptions, that are limited and specific, in order to (i) facilitate informed public participation in policy formulation, (ii) ensure fairness in government decision-making, (iii) permit the airing and reconciliation of divergent views.

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Open Meetings

Some observers regard the public’s right to attend meetings of public bodies to be, in some way, even more essential to transparency and participatory democracy than FOI laws. FOI laws grant access to records that by definition have been created in the past; but open meetings give citizens the right to attend, participate and potentially change the present and future course of their circumstances.

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In their open meetings provisions, the FOI law of Romania and several other nations require the bodies to invite citizens ‘to participate in decisions.’ Similarly, it is the practice (though not always law) in many Canadian municipalities to post agendas online in advance, and grant citizens five minutes each to address council meetings. In 1999, after a decade of pleas by FOI advocates, British Columbia passed the Local Government Act; it became the first province to fully prescribe what topics must be discussed in local councils’ public and closed sessions, rights which a later administration partly curtailed when revising the law as the Community Charter. Canada’s Access to Information Act contains no rules on open meetings, yet there are many federal entities the right could be applied to. Public access to meetings for several entities - such as parliament, courts, commissions, municipalities and even ecclesiastical bodies - are prescribed in the FOI statutes of Croatia, Finland, Kyrgyzstan, Liechtenstein, Moldova, Montenegro, Norway, Poland, Romania and the code of Wales; and in the draft FOI bills of Abkhazia, Kenya and Palestine.389 Regarding access to meeting records, Peru’s FOI law grants this right, without an FOI request, in Sec. 10: ‘Every type of documentation financed by the public budget based on decisions of an administrative nature is considered public information, including records of official meetings.' The United States’ federal FOI Act does not mandate open meetings, per se, but does require in Sec.(5): ‘Each agency having more than one member shall maintain and make available for public inspection a record of the final votes of each member in every agency proceeding.’ Almost all American states have commendable ‘sunshine legislation’ for open meetings (which can be read at: http://www.rcfp.org/ogg/). Without publicizing open meetings, the right would be less effectual; therefore, several of these laws require the state to widely advertise the agenda, date and location of upcoming meetings. Besides the right to attend, the Polish FOI law grants citizens ‘the opportunity to make sound and visual recordings' of open meetings, as does Kyrgyzstan. Perhaps attitudes are changing even in Canada. In Ottawa in November 2007, the National Capital Commission held its historic first public regular meeting of the NCC board at the Holiday Inn Plaza La Chaudiere. It was moving to shed its image as a secretive, powerful federal agency that shaped the capital region by dictate of an all-powerful chairman, who ran both the board and day-to-day operations. The NCC established three new public consultation committees that will give area people input,

389 Apart from FOI statutes, several nations also have separate laws on open meetings, such as Norway’s Municipalities Act of 1992, Romania’s Law on Decisional Transparency in Public Administration of 2002, and New Zealand’s Local Government Official Information and Meetings Act of 1987, and the Russian Federation’s Law on Procedure of the Coverage of State Bodies Activity in State Mass Media of 1995.

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which chief executive officer Micheline Dube said were needed because area people felt shut out of the commission's decisions.390 Another concept proposed is that of requiring federal crown corporations (such as Canada Post and Via Rail) to hold public annual general meetings, where the president and board would take questions from the floor, much as publicly-traded private companies often do for their shareholders – the public here, of course, being a form of “shareholder.”

Global Commentary

• Article 19, Principles of Freedom of Information Legislation, endorsed by the

United Nations, 1999:

'Principle 7 – Open Meetings. Freedom of information legislation should establish a presumption that all meetings of governing bodies are open to the public... meetings of elected bodies and their committees, planning and zoning boards, boards of public and educational authorities and public industrial development agencies would be included.

‘Meetings may be closed, but only in accordance with established procedures and where adequate reasons for closure exist. Any decision to close a meeting should itself be open to the public. The grounds for closure are broader than the list of exceptions to the rule of disclosure but are not unlimited. Reasons for closure might, in appropriate circumstances, include public health and safety, law enforcement or investigation, employee or personnel matters, privacy, commercial matters and national security.'

• Commonwealth Human Rights Initiative, Open Sesame: Looking for the Right to

Information in the Commonwealth, 2003:

‘Opening up government meetings - To bolster open government, encourage informed participation and inspire confidence, progressive governments are putting in place laws that make participation and consultation with the public a legal requirement. South Africa values this so highly that it is mentioned in the Constitution, and New Zealand has had its so-called ‘sunshine law’ in place for more than 15 years. ‘Sunshine laws’ legally require government meetings to be open except in certain specified cases. These laws habituate government to functioning under the public’s gaze. Sunshine laws increase public understanding of government actions; build effective citizenship at the grassroots level; make both elected and appointed officials more accountable; foster a free press able to acquire information without currying favour; and improve procedural and record-keeping standards of governmental bodies.’

390 First public NCC meeting sheds veil of secrecy; Stronger board presence counter-balances power of chairman, by Patrick Dare. The Ottawa Citizen. Nov 8. 2007

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• Commonwealth Parliamentary Association, Recommendations for Transparent

Governance, 2004:

‘[Within Parliament] (14.3) There should be a presumption that committee meetings are open to the public, so that closed meetings are the exception rather than the rule. Where it is necessary to hold a meeting, or part of a meeting, in private, a decision to that effect should be taken in public and reasons for that decision should be given.’

• Commentary by Article 19 on draft FOI bill of Palestine, 2005:

‘The Article 19 Principles recommend that only meetings of governing bodies should be open to the public, understood as bodies that exercise decision-making powers. This would include meetings of elected bodies and their committees, and meetings of bodies such as planning authorities and the boards of public and education authorities and public industrial development agencies. Bodies that merely proffer advice and meetings of political parties are not covered.’391

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FOI and the Media In some nations, the particular needs of the media are considered in their transparency laws. In Romania’s FOI statute, Art. 15, ‘The access of the mass media to the information of public interest is guaranteed.’ The authorities must respond in 10 days, which can be extended for a total of 30 days, yet there is an exception in Art. 8.(5): ‘The information of public interest requested verbally by the mass media shall be communicated, as a rule, immediately, or in maximum 24 hours’ time.’ In Lithuania, too, officials must respond to media requests more quickly. In Canada and elsewhere, some journalistic FOI applicants complain that governments routinely and even ‘maliciously’ send the requested records first to so-called ‘friendly’ media - who might not have even applied for them - in the hopes of sabotaging the applicant’s ‘scoop,’ and positively colouring the public ‘message’ projected from (or onto) the records. Serbia’s FOI law appears to be the only one that has dealt with this complaint, in a section called ‘Ban of Discrimination on Journalists and Media Outlets.’

Art. 7 - A public authority may not give preference to any journalist or media outlet, when several have applied, by allowing only him/her or allowing him/her before other journalists or media outlets to exercise the right to access information of public importance.

391 Memorandum on a draft Law on Access to Information for Palestine. By Article 19, London, 2005 http://www.article19.org/pdfs/analysis/palestine-2005.pdf

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A fine between of 5,000 and 50,000 dinars [$100 - $1,000 Can.] can be levied for this offense; in Serbia public authorities can also be held liable for damages if they prevent a media outlet from publishing information by withholding it without justification. In the state of Western Australia, Information Commissioner John Lightowlers will consider backing changes to the FOI regulations to ensure that media organisations which apply for information are not given the documents after they have been provided to rivals. Mr Lightowlers said he would take advice on whether to ask Parliament to ensure a general public release of all information requested under FOI laws.392

Commissioner Lightowlers said he was aware of complaints that media organisations could be given a competitive advantage over rivals under the existing system. But he would not support a suppression on information until after the initial applicant had had a chance to print or broadcast it, saying the FOI office was interested only in the timing of the information’s release, rather than when it was used.

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A Final Thought What is in a name? The organization Article 19 proposes that a model FOI statute be called The Right to Information Act, to express its ideal character; such is the name of India’s FOI law, one of the world’s very best. Indeed I hope that Canada’s Access to Information Act will be re-titled thus. By some coincidence, however, what is indisputably the most ill-fated FOI statute in Canada, that of New Brunswick – the only one with no time limits or public interest override, few harms tests, and every exemption mandatory – is ironically the only provincial law bearing the title Right to Information Act. On this point, we might hope the bureaucratic view as voiced by the droll Sir Humphery393 would not prevail, as he said when proposals were being raised to introduce a freedom of information statute: ‘I explained that we are calling the White Paper “Open Government” because you always dispose of the difficult bit in the title. It does less harm there than on the statute books . . .’

392 FOI chief considers need for overhaul, by Kim MacDonald. The West Australian (Perth), March 11, 2008 393 From the private diary of Sir Humphery Appelby. Espisode titled Open Government. London: BBC publications, 1981. Meanwhile, some Australian FOI commentators complain that their nation’s law is so ineffectual that it should be entitled ‘The Freedom From Information Act.’

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Appendix 1

World FOI Chart

Explanatory Notes, Sept. 2008

As an aid to freedom of information scholars, I thought in 2007 to cross-reference by topic the key primary documents on freedom of information law that could be found: i.e., the texts of 73 national FOI laws, 29 draft FOI bills, 12 Canadian provincial and territorial FOI laws, the commentaries of 14 global and 17 Canadian non-governmental organizations, and the FOI codes of 12 intergovernmental entities. Their main topics were entered into a comparative Excel spreadsheet, to create the World FOI Chart at www3.telus.net/index100/foi It is the foundation for my report Fallen Behind: Canada’s Access to Information Act in the World Context, 2008, and could be utilized in at least three other ways: (a) Other writers could use the Chart as aid to write similar FOI comparative reports for their own nation or province; perhaps to press for higher standards in their own nations’ access laws or practices by reference to others. (b) The Chart might also serve as a reference aid for law, journalism and political science students. When FOI provisions are compared, new patterns and surprising similarities or differences may emerge, particularly within regions or the Commonwealth. Column K could also be consulted by international journalists to see which nations allow foreigners to file FOI requests. (c) Rulings and commentaries could be cited when arguing general principles in their FOI legal appeals (the purpose of Appendix 2 below). Although the Report contains interpretation on Canadian FOI issues, the Chart has been conceived to be as neutral and comprehensive as possible which is why, whenever possible, the original statute texts (or available translations) have been quoted, rather than paraphrased. Nearly all quotations are derived from public online sources; above all, I urge readers to consult the full original texts which are hotlinked within the chart, for many of the quoted items here are incomplete or paraphrased due to space restrictions, and the originals may contain important technical details. The focus here is on FOI requests for general records, not requests for one’s own personal records, which are often the mandate of separate privacy laws. In the Chart, blank fields remain, where information was not available or could not be located (and sometimes a law’s silence on a matter can be eloquent). Subjects are keyword searchable using Ctrl-F. Special columns (N and O) have been created for what are, at least in Canada, probably the two most overapplied and contentious FOI exemptions: those for policy advice, and

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cabinet records. Hopefully, if the Chart is to be expanded in future, it would contain a new column for each exemption type, e.g., privacy, third party trade secrets. For space restrictions, several topics are absent, such as the privacy protection parts of the laws; the transfers of FOI requests; ignoring ‘systematic and repetitious’ requests; when a public body may ‘refuse to confirm or deny’ the existence of a record; full lists of types of public bodies covered (e.g., universities, hospitals); if the state must make an annual report on FOI; applicants acting on behalf of others, records released so many years after a person’s death; notices to third parties; who is delegated to make access decisions, etc. In several cells, I placed a {*} symbol, as a kind of modest award, next to a rare and outstandingly positive feature of a freedom of information statute or policy, one that might serve as an inspiration for other jurisdictions. If you disagree with my choices for the {*} mark, or have other choices of your own, I would be keen to hear them. The Chart was prepared for both Canadian and global readers, in a manner that hopefully makes legal topics accessible to all. One of the goals of this Chart is to encourage more real engagement and dialogue between sectors that have hitherto been mainly segregated in FOI discussions - journalists, lawyers, academics, politicians, the bureaucracy, the private sector, applicants and the general public – both in Canada and around the world. Incomplete and imperfect, the World FOI Chart is not the end point in the comparative study of FOI laws, but just the beginning. (For one thing, as laws are revised, the Chart would require revision as well.) Although the struggle for open government seems a very uneven one, the goal of this Chart is to educate and perhaps empower the public worldwide who are pressing for more transparency, to hopefully create a somewhat more level playing field. We are all indebted to David Banisar at www.freedominfo.org, Toby Mendel of Article 19, and the Commonwealth Human Rights Initiative, without whose groundbreaking analysis of FOI statutes and draft bills, such a Chart would not have been possible. ( Note. This Chart was produced with financial aid from the British Columbia Freedom of Information and Privacy Association, FIPA, www.fipa.bc.ca It is meant to be an indicator for researchers, not as legal advice of any kind, and I bear no liability for errors, omissions, or consequences of using it. The Chart may be widely distributed without further permission, but only without any charge or profit. Comments, updates, and corrections, are welcomed at stanleytromp@gmail.com )

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Appendix 2

Index of FOI rulings online, for legal guidance

An aid for researchers

( Column AE of the World FOI Chart )

Beyond the statutes, freedom of information law can be heavily shaped by judicial interpretations, and so is ever evolving. Hence it is important for FOI applicants, scholars and advocates to be aware of recent trends.

When arguing to FOI appellate bodies that information should be released in response to my FOI requests, I have often found it useful to find and cite related rulings from other jurisdictions. Government lawyers have done so for many years (at public expense) to obstruct FOI releases, and why should the public not be able to do the same for the opposite purpose?

Even though such rulings are not binding precedents, they can at least offer in-depth consideration on an FOI topic for a commissioner or judge to contemplate, and concepts that could work to an applicant’s favour. Applicants often have stronger arguments for disclosure than they realize, and these free online indices might assist them on occasion.

Of course, the wording of a topic exemption (such as law enforcement) in various FOI statutes can differ in many ways – e.g., being mandatory or discretionary, with a harms test and time limits or without, subject to a public interest override or not – yet the general principles at stake may still be similar enough to offer some guidance when formulating arguments or decisions.

For Canadians, precedents from Commonwealth nations, having a similar legal tradition, will generally be more persuasive, yet if literature on a specialized FOI topic is very scant, it may be advantageous to search further afield, e.g., not inconceivably from the United States or France (such as for Quebec provincial FOI cases).

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Procedures

• The basic guidebook to the Canadian ATIA statute and precedents is Colonel Michel W. Drapeau and Marc-Aurele Racicot, Federal Access to Information and Privacy Legislation, Annotated 2007. Toronto: Thomson Carswell, 2008, updated annually.

(This volume includes an instructional chapter on filing an ATIA appeal oneself; the Information Commissioner’s office has issued a pamphlet to educate applicants for the same purpose. Some applicants can overcome financial limitations, most notably Ken

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Rubin, a private citizen and likely Canada’s most effective and prolific ATIA user, who often files his own ATIA lawsuits, represents himself in court and sometimes wins cases.)

• For Canadian provincial laws and rulings, the essential sourcebook is Colin McNairn and Christopher Woodbury's Government Information: Access and Privacy, updated annually with looseleaf supplements. Toronto: Carswell, 2008

• Beyond published texts, the number of internet FOI resources is expanding yearly, and online legal research is fortunately not quite so daunting as it may seem. The procedure below might be helpful:

1) Click on the World FOI Chart, (www3.telus.net/index100/foi), and therein search for the column of the topic that concerns you. (This will often be in Column ‘M,’ Exemptions to Disclosure.)

For example, perhaps a British Columbia public body has denied your FOI request to see a copy of a public-private business contract, invoking Section 17 of the B.C. FOIPP Act: ‘Disclosure harmful to the financial or economic interests of a public body.’

When you scroll down Column M, one can see an equivalent to B.C.’s Section 17 in the FOI laws of Australia (Sec. 38), Mexico (Art. 13 - III), the United Kingdom (Sec. 29), Scotland (Sec. 33), and others. (Again, I emphasize that provisions are often roughly and not precisely analogous.)

2) Next, click onto the websites of the indices of FOI decisions, cited below. e.g., for the U.K., link to http://www.ico.gov.uk/tools_and_resources/decision_notices.aspx and search by U.K.’s FOI law section, or by subject keywords, for a discussion of the relevant topic. (For more information on these procedures, one could call the Information Commissioners’ office in each jurisdiction.)

=================================

CANADA

Access to Information Act (1982) • The Canadian Information Commissioner’s office has an online ‘Cumulative Index of Annual Report Case Summaries’ at: http://www.infocom.gc.ca/reports/defaultcs-e.asp Reports can be searched by ATIA section. (The Commissioner has not the statutory power to order information release.) • The Commissioner’s annual reports also contain useful summaries of selected cases at: http://www.infocom.gc.ca/reports/default-e.asp • At the Federal Court website, rulings on ATIA disputes can be found at: http://decisions.fca-caf.gc.ca/en/index.html (Typing in ‘Access to Information Act’ in the

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search engine returns 1,853 results.) One can search by keyword, title or case name; or by citation or docket number.

• The Federal Appeal Court and Supreme Court of Canada have also dealt with ATIA cases - http://www.fca-caf.gc.ca/about/history/history_e.shtml and http://www.scc-csc.gc.ca/home-accueil/index-eng.asp

UNITED KINGDOM

Freedom of Information Act (2000, effective 2005) • The UK Information Commissioner’s office has a superb online index of decisions at: http://www.ico.gov.uk/tools_and_resources/decision_notices.aspx

The Commissioner has the statutory power to order information release; these decisions can be appealed to the Information Tribunal, and after that to the courts. ‘All Decision Notices are easily and quickly referenced using the dedicated search engine.’ Notices can be searched by case reference number, date, public authority, FOI law section, and/or status of case.

• The UK Information Tribunal has an online index of nearly 200 decisions at: http://www.informationtribunal.gov.uk/Decisions/foi.htm (Cases currently being appealed to a higher court are marked with a special symbol.) • There is a link to other relevant UK FOI court decisions at: http://www.informationtribunal.gov.uk/Decisions/other.htm • United Kingdom courts website - http://www.justice.gov.uk/whatwedo/supremecourt.htm

SCOTLAND

Freedom of Information (Scotland) Act (2002) • Scottish Information Commissioner’s website, fully searchable database of 662 decisions at: http://www.itspublicknowledge.info/ApplicationsandDecisions/Decisions/Decisions.php • Scottish courts website - http://www.scotcourts.gov.uk/

AUSTRALIA

Freedom of Information Act (1982)

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Under the Act, applicants have a number of different appeal avenues. They can appeal internally, and then request a merits review by the Administrative Appeals Tribunal, http://www.aat.gov.au (which can issue binding decisions), followed by appeals on possible errors of law to the Federal Court or High Court. In addition, an applicant can make a complaint at any time on matters of administration to the Commonwealth Ombudsman, whose decisions are not binding.’ • Administrative Appeals Tribunal’s rulings (not all on FOI matters) athttp://www.ombudsman.gov.au/commonwealth/publish.nsf/Content/publications_investigationreports_2007 • Ombudsman reports at: http://www.ombudsman.gov.au/commonwealth/publish.nsf/Content/publications_investigationreports_2007 • The most complete set of Australian FOI links is at: http://www.archives.sa.gov.au/foi/links.html • Australia courts websites - http://www.fedcourt.gov.au/ and http://www.hcourt.gov.au/

AUSTRALIAN STATES AND TERRITORIES

• Decisions of the Western Australia Information Commissioner at: http://www.foi.wa.gov.au/Decisions.htm Search index by keyword or section • Decisions of the Queensland Information Commissioner at: http://www.oic.qld.gov.au/default.asp?p=28 Search index by keyword or section Queensland judicial review decisions at: http://www.oic.qld.gov.au/default.asp?p=27 • Decisions of the Northern Territory Information Commissioner at: http://www.infocomm.nt.gov.au/publications/index.htm • Decisions of the New South Wales Administrative Appeals Tribunal at: http://www.lawlink.nsw.gov.au/lawlink/caselaw/ll_caselaw.nsf/pages/cl_adt (Search term ‘Freedom of information’) • State Ombudsman of South Australia - Annual reports with FOI reviews chapters at: http://www.ombudsman.sa.gov.au/index.php?page=publications&load=01 • State Ombudsman of Tasmania - Annual reports with FOI reviews chapters at: http://www.ombudsman.tas.gov.au/publications/annual_reports FOI reviews chapters. • State Ombudsman of Victoria - Annual reports with FOI reviews chapters at: http://www.ombudsman.vic.gov.au/www/html/84-annual-report-2007-08.asp

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NEW ZEALAND

Official Information Act (1982) • Ombudsman – FOI case notes at http://www.softlinkpacific.co.nz/OMBliberty3/gateway/gateway.exe?application=Liberty3&displayform=opac/main • New Zealand courts websites - http://www.justice.govt.nz/

IRELAND

Freedom of Information Act (1997) • Decisions of the Information Commissioner, search at: http://www.oic.gov.ie/en/DecisionsoftheCommissioner/ • Ireland courts website - http://www.courts.ie/

INDIA

Right to Information Act (2005) An internal appeal can be made against decisions to a nominated person who is senior in rank to the PIO. A second appeal can be made to the Information Commissions at the Central and State levels or alternatively, a complaint can be made directly to these Commissions, who can make binding decisions. The Act attempts to bar appeals to the courts, but as the right to information is a constitutional right, it would appear that citizens still have the right to go to the High Court or Supreme Court if they feel their right has been infringed. • Central Information Commissions at http://cic.gov.in/ Here are hundreds of ‘full bench’ decisions, recent decisions, and more. Type keywords into search engine. Also see link to ‘Landmark orders of State Information Commissions.’

• India courts website - http://indiancourts.nic.in/

SOUTH AFRICA

Promotion of Access to Information Act (2000)

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• The supervision and promotion of the PAIA is the responsibility of the South Africa Human Rights Commission (SAHRC), but it cannot order information released. FOI appeals are made to the courts. • Constitutional court case index at http://www.constitutionalcourt.org.za • South Africa courts website - http://www.capegateway.gov.za/afr/pubs/public_info/C/32303/E

UNITED STATES

Freedom of Information Act (1966) • Department of Justice website, summaries of new FOIA decisions at: http://www.usdoj.gov/oip/foiapost/mainpage.htm Use search engine, e.g., “Exemption 4” • Public Citizen, a national non-profit public interest organization, posts FOIA cases at: http://www.citizen.org/litigation/forms/cases/casesbytopic.cfm (DOJ compilation of judicial decisions, both published and unpublished, and articles and treatises concerning the Freedom of Information Act, the Privacy Act of 1974, the Government in the Sunshine Act, and the Federal Advisory Committee Act.) Public Citizen posts links to:

• Significant Judicial Decisions Interpreting the FOIA • Briefs From PCLG FOIA Litigation • DOJ's List of Cases and Articles Concerning FOIA

• First Amendment Center – links to FOIA litigation news at: http://www.firstamendmentcenter.org/press/information/cases_resources_summary.aspx • There are also court cases regarding the distinct FOI laws of each American state. These are all posted at http://nfoic.org/foi-center/state-foi-laws.html

FRANCE

Law on Access to Administrative Documents (1978) • Commission d'accèss aux documents administratifs (CADA), the FOI appellate body. Documents on FOI disputes at: http://www.cada.fr/fr/conseils/frame.htm • French courts website - http://www.courdecassation.fr/

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ISRAEL

Freedom of Information Law (1998) • Israel Supreme Court decisions at: http://elyon1.court.gov.il/verdictssearch/englishverdictssearch.aspx Enter “Freedom of Information” (which returns hundreds of results) or other keywords in search engine. Also see websites of lower courts.

• Israel courts website - http://elyon1.court.gov.il/eng/home/index.html

MEXICO

Federal Law of Transparency and Access to Public Government Information (2002) • Federal Institute for Access to Public Information (IFAI), the FOI appellate body. Search rulings at: http://www.ifai.org.mx/ (In Spanish)

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CANADIAN PROVINCES The Information and Privacy Commissioners in five provinces - British Columbia, Alberta, Ontario, Quebec and Prince Edward Island - have the power to order government to release records. As well as the case indexes below, there are summaries of selected cases in the Commissioners’ online annual reports, which can be word-searched by the standard Cntl-F function.

BRITISH COLUMBIA

• Freedom of Information and Protection of Privacy Act (1992) Sectional Index - orders organized by FIPPA sections at: http://www.oipcbc.org/sector_public/orders_decisions/sectional_index.htm ‘Please note that we have not necessarily listed every order that discusses a particular section. This table has been amended to reflect 1996 re-numbering of certain sections in FIPPA. An asterisk (*) indicates the order was the subject of an application for judicial review. Click here to view a table of judicial reviews: http://oipc.bc.ca/sector_public/orders_decisions/judical_reviews.htm Orders that are in bold type indicate that the order contains extensive discussion of the section in question. These orders are highlighted for convenience only. Each case is decided on its facts and other orders may also be relevant to your situation.’ • B.C. courts website - http://www.courts.gov.bc.ca/

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ALBERTA

Freedom of Information and Protection of Privacy Act (1994) • Orders indexed by section or keywords at: http://www.oipc.ab.ca/orders/orders.cfm • Case summaries at: http://www.oipc.ab.ca/orders/summaries.cfm ‘The following case summaries are completed for select cases that the Office of the Information and Privacy Commissioner determines may have educational value for Albertans, or are indicative of common privacy or access issues facing organizations, custodians or individuals. The case summary page does not include summaries for published Investigation Reports or Orders, as this information is available under the previous menu. Many complaints received by the OIPC are resolved without the need for an inquiry.’ • Judicial reviews of Alberta FOI cases at: http://www.oipc.ab.ca/orders/judicial.cfm • Alberta courts website - http://www.albertacourts.ab.ca/

SASKATCHEWAN

Freedom of Information and Protection of Privacy Act (1991) • Review reports discuss sections applied of FOIPP Act, as noted in index at: http://www.oipc.sk.ca/reviews.htm

• Saskatchewan courts website - http://www.sasklawcourts.ca/

MANITOBA

Freedom of Information and Protection of Privacy Act (1985) • Selected FOI case summaries by Ombudsman after 2003 at: http://www.ombudsman.mb.ca/casesummaries.htm Prior to that year, case summaries were included in the Ombudsman’s annual report. ‘Listed under these ‘Access’ and ‘Privacy’ subheadings are case summaries never before published by our office as well as those that were featured in the Ombudsman’s Annual Report on Access and Privacy for the years 1998, 1999 and 2000.’ See: http://www.ombudsman.mb.ca/casesummaries-fippa.htm#access

• Manitoba courts website – http://www.manitobacourts.mb.ca/

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ONTARIO

Freedom of Information and Protection of Privacy Act (1987) • Browse all Commission’s FOI decisions and resolutions, by keyword or Act section, at: http://www.ipc.on.ca/index.asp?navid=62 • Reconsideration Table at: http://www.ipc.on.ca/index.asp?navid=68 • Judicial review of municipal orders at: http://www.ipc.on.ca/index.asp?navid=69 • Judicial review of provincial orders at: http://www.ipc.on.ca/index.asp?navid=70 • Ontario courts website - http://www.ontariocourts.on.ca/ocj/en/

QUEBEC

An Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information (1982) • Index of FOI decisions, in English, at: http://www.cai.gouv.qc.ca/index-en.html (2001-03) • Index of decisions, en Francais, at: http://www.cai.gouv.qc.ca/index.html (2000-2008) • Index of FOI jurisprudence, indexed by Act’s section, en Francais, at: http://www.cai.gouv.qc.ca/index.html • Quebec courts website - http://www.tribunaux.qc.ca/mjq_en/c-quebec/index-cq.html

NEW BRUNSWICK

Right to Information Act (1978) • Most Ombudsman recommendations issued since January 2006 concerning Right to Information Act petitions are posted at: http://www.gnb.ca/0073/RightInfoAct-e.asp • New Brunswick courts website - http://www.gnb.ca/Cour/index-e.asp

NOVA SCOTIA

Freedom of Information and Protection of Privacy Act (1977) • Table of Concordance for FOI case reports after 2002 at: http://foipop.ns.ca//rep_prov.html

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• Nova Scotia courts website - http://www.courts.ns.ca/

PRINCE EDWARD ISLAND

Freedom of Information and Protection of Privacy Act (2001) • Index to FOI orders at: http://www.assembly.pe.ca/index.php3?number=1021417 • Index to FOI judicial reviews at: http://www.assembly.pe.ca/index.php3?number=1013953 • Prince Edward Island courts website - http://www.gov.pe.ca/courts/

NEWFOUNDLAND AND LABRADOR

Freedom of Information and Protection of Privacy Act (1981) / Access to Information and Protection of Privacy Act (2002) • Index of references to the Commissioner’s FOI case reports at: http://www.oipc.gov.nl.ca/tableofconcordance.htm • Newfoundland and Labrador courts website - http://www.court.nl.ca/

THE TERRITORIES No online rulings indices could be found for the Yukon, Northwest Territories and Nunavut. Yukon Territories courts website - http://www.yukoncourts.ca/ Northwest Territories courts website - http://www.nwtcourts.ca/ Nunavut court website - http://www.nucj.ca/

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Appendix 3

CANADIAN QUASI-GOVERNMENTAL ENTITIES NOT COVERED BY THE ACCESS TO INFORMATION ACT

As of Sept. 2008 (The list below is derived from one published by the Office of the Information Commissioner, then John Reid, on October 8, 2002. The original list was longer, but some of those entities were later added to ATIA coverage due to legislative amendments in 2005 and 2007 – e.g., several foundations, wholly owned subsidiaries of crown corporations – and so I subtracted those from this 2008 list. More such entities have been created since 2002, but it difficult to keep track of them, hence not all appear here. – S. Tromp) 2001 London Alliance Canada Summer Games Host Society Inc.

2003 Bathurst-Campbellton Canada Winter Games Host Society Inc.

3558533 Canada Inc.

964102 Ontario Inc.

Aéroport de Québec Inc. African Development Bank Agri-adaptation Council Inc. Agricultural Adaptation Council Agriculture and Food Council of Alberta Agriculture Institute of Management in Saskatchewan, Inc. (AIMS) Agri-Food Innovation Fund Agri-Futures Nova Scotia ARTV Asian Development Bank Association for the Export of Canadian Books Beef Industry Development Fund Bell Bay Golf Developments Incorporated

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British Columbia Investment Agriculture Foundation (BCIAF) Buffalo and Fort Erie Public Bridge Authority Cable North Microwave Limited Calgary Airport Authority Calgary Olympic Development Association Canada Games Council Canada-Alberta Beef Industry Development Fund Canada-Alberta Hog Industry Development Fund Canada-Alberta Sugar Beet Industry Development Fund Canada-Alberta Value-added Industry Development Program Canada-Manitoba Agri-Food Research and Development Initiative Canada-Newfoundland Agri-Food Innovation Fund Canada's Climate Change Voluntary Challenge and Registry Canadian Centre on Substance Abuse Canadian Coordinating Office for Health Technology Assessment Canadian Energy Research Institute Canadian Farm Business Management Council (CFBMC) Canadian Health Services Research Foundation Canadian Institute for Health Information (CIHI) Canadian International Grains Institute Canadian Livestock Records Corporation Canadian Teleservices Corporation Canadian Television Fund Canadian Tennis Technology Limited Cape Breton Carbofuels Limited Caribbean Development Bank

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Carol Rizzetto Realty Limited Partnership Centre de développement du porc du Québec Inc. Centre d’entrepreneuriat et d’essaimage de l’université du Québec à Chicoutimi (CEE-UQAC) Centre national multisport – Montréal Charlottetown Airport Authority Inc. Coaching Association of Canada Cominco Ltd. Commonwealth War Graves Commission Conseil de recherches en pêche et agroalimentaire du Québec (CORPAQ) Conseil pour le développement de l’agriculture du Québec (CDAQ) Country Canada Co-operative Vereniging International Post Corporation U.A. Corporation Camp Spatial Canada Distribution Management Services Inc. Edmonton Regional Airports Authority European Bank for Reconstruction and Development Fondation du maire de Montréal pour la Jeunesse Fonds de développement-emploi Montréal Fonds d'investissement et de développement de l'emploi dans les quartiers centraux de Québec (FIDE) Inc. Fonds québécois d'adaptation des entreprises agroalimentaires, inc. Forest Engineering Research Institute of Canada Forintek Canada Corporation Gander International Airport Authority Inc. General Mining Building Limited Genome Canada

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Greater Fredericton Airports Authority Inc. Greater London International Airport Authority Greater Moncton Airport Authority Inc. Greater Toronto Airports Authority Halifax International Airport Authority Hamilton Harbour Commissioners Hibernia Management and Development Company Ltd. Inter-American Development Bank International Bank for Reconstruction and Development International Boundary Commission International Development Association International Finance Corporation International Fisheries Commissions Pension Society International Lake Memphremagog Levels Board International Lake of the Woods Control Board International Monetary Fund International Niagara Committee International Porcupine Caribou Management Board IPC Technology S.C. IPC Unipost S.C. Last Post Fund Le Consortium de télévision Québec Canada Inc. (TV5) Lower Churchill Development Corporation Manitoba Crop Diversification Centre (MCDC) Manitoba Rural Adaptation Council Inc. Maritime Forestry Complex Corporation

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Master FM Limited Montréal International Multilateral Investment Guarantee Agency National Sport Centre – Atlantic Canada National Sport Centre – Calgary National Sport Centre – Greater Victoria National Sport Centre – Toronto National Sport Centre – Vancouver National Sport Centre – Winnipeg Nature Trust of British Columbia NAV CANADA New Brunswick Agricultural Council New Brunswick Biotechnology and Technological Innovation Centre of Excellence Inc. (BioAtlantech) North American Commission for Environmental Co-operation – Joint Public Advisory Committee North Portage Development Corporation & The Forks Renewal Corporation Northern Native Fishing Corporation Nova Scotia Apple Industry Development Fund Nova Scotia Research and Development for Grain and Forage Nova Scotia Technology Development 2000 Ontario Agriculture Training Institute (OATI) Ontario Safety Net Research and Development Fund Oshawa Harbour Commission Ottawa Macdonald-Cartier International Airport Authority PARTICIPaction

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Petro-Canada POS Pilot Plant Corporation Prince Edward Island Adapt Council Inc. (PEIAC) Pulp and Paper Research Institute of Canada Purolator Courier Ltd. Purolator Courier U.S. Ltd. Purolator Customs Services Ltd. Purolator Holdings U.S. Ltd. Quartier International de Montréal Regina Airport Authority Roosevelt Campobello International Park Commission Saint John Airport Inc. Saint John Harbour Bridge Authority Saskatchewan Council for Community Development Saskatoon Airport Authority Silver Screen Star Limited Société de développement à l’exportation de la Rive-Sud de Montréal Société de développement de l’industrie maricole de la Gaspésie et des Îles-de-la-Madeleine (SODIM) Inc. Société du parc industriel et portuaire Québec-Sud Sport Information Resource Centre St. John’s International Airport Authority St. Lawrence Seaway Management Corporation Supercourier (1987) Ltd. Territorial Farmers Association NWT Terry Fox Humanitarian Award Inc. Thunder Bay International Airports Authority Inc.

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Tree Canada Foundation Vancouver International Airport Authority (YVR) Vanier Institute of the Family Victoria Airport Authority Visnews Limited Western Grains Research Foundation Wildlife Habitat Canada Winnipeg Airports Authority Inc. World Anti-Doping Agency Yukon Agricultural Association

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Appendix 4

Notable Canadian news stories based on ATIA requests The value of a strong Access to Information Act is better demonstrated than just asserted. To counter negative claims made by bureaucrats and politicians about FOI law usage, here are summaries of Canadian news story on issues as diverse as health, safety, government financial waste, public security, and environmental risks. They all share two common features: all reveal issues vital to the public interest (i.e., not merely topics the public ‘might find interesting’), and all were made possible through ATIA requests. They were published in just the past two years, and one could have cited hundreds, perhaps thousands, of such ATIA related stories dating back to 1983. It is best to include a hopeful note in this study. The examples cited here can serve as an antidote against despondency or cynicism regarding the weak ATIA system, for they show how journalists can sometimes overcome the barriers of bureaucratic and political resistance to produce valuable results. While these are impressive enough, imagine how much more could yet be achieved with an ATIA reformed up to global FOI standards (such is the overall purpose of this report), and the potential loss of such stories if the ATIA system erodes still further. If the question is posed, ‘Why should we care if we have good FOI laws?’- the answer is suggested below.

Health and Safety

The Canadian government strongly opposed tougher U.S. rules to prevent listeria and lobbied the United States to accept Canada's more lenient standards, internal documents released through the ATIA reveal. Briefing notes prepared by the Canadian Food Inspection Agency for an April 7, 2006, meeting with the board of directors of the Canadian Meat Council outline how both industry and the Canadian government were frustrated with the increased precautions the United States was demanding.

Specifically, Canada opposed daily inspection visits and the testing of finished products for Listeria monocytogenes (a bacterium that has led to the deaths of several Canadians this year). Further, the documents show the CFIA agreed to the meat packing and processing industry's request to end a 20-year-old practice of having inspectors issue reports and rankings on facilities. The Canadian Meat Council complained the reports were ending up in the hands of reporters through the ATIA, leading to bad coverage.

- From Ottawa wanted U.S. to accept more lenient meat inspection regime, by Bill Curry, The Globe and Mail. Aug. 29, 2008

• • • • •

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The Stephen Harper government was urged when it took office in 2006 by its own experts to embrace new targets to protect children from environmental threats, says a document obtained through the Access to Information Act (ATIA). ‘While many of the tools may be in place to manage risks to child health, the federal government lacks a coherent and coordinated approach needed to address gaps in our information base,’ said a briefing note of May 2006. For example, one official said a suspected carcinogen banned in pesticides is still available in some bottles of shampoo used to treat lice, and the shampoo is mostly used by children.

- From Tories ignored own advice to do more to protect children's health; In 2006, experts warned government it lacked coherent plan to reduce environmental risks to kids, by Mike De Souza. The Vancouver Sun, March 24, 2008

• • • • •

Canadian border guards may lack the necessary training to keep dangerous goods out of Canada that may be carrying mad cow, foot-and-mouth disease, and even avian flu, leading to potential outbreaks that could damage the country's tourism and agricultural industries. An internal risk assessment conducted by the Canadian Food Inspection Agency, obtained through the ATIA, also warns that border officials are too busy to properly screen international travellers entering the country for food, animal and plant materials that could contain pathogens that may infect Canada's animal population.

- From Poor training raises outbreak risk, agency says, by Carly Weeks. The Globe and Mail, Sept. 1, 2008

• • • • •

Just before the start of 2007's scares over hazardous consumer products from China, Health Canada received a devastating analysis. A report it had commissioned from outside consultants warned that the country's main consumer-protection law, the 1969 Hazardous Products Act, was seriously outdated and woefully inadequate to safeguard the public from perils in everyday products. The report was obtained through the ATIA by Ottawa-based researcher Ken Rubin.

- From Consumer-protection law defective, study finds; Warnings Canadians do get about hazardous products often come from the U.S., which imposes stringent regulatory safeguards, by Martin Mittelstaedt. The Globe and Mail, April 2, 2008

• • • • •

Ottawa's policing of the shellfish industry is so fraught with problems that the health of consumers is being put at risk, says a report released through the ATIA. ’Inconsistent

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implementation is posing a potential risk to the health and safety of Canadians,’ says an independent study of July 2007 ordered by the Canadian Food Inspection Agency. The report warns that the federal program overseeing the shellfish industry is stretched to the limit, with not enough inspectors, research or money to guard properly against deadly toxins.

- From Report warns of tainted shellfish; Health risk possible because industry lacks policing, report says, by Dean Beeby, The Canadian Press. The Toronto Star, February 18, 2008

• • • • •

Canada's nuclear regulator is changing the way it tracks lost, stolen and missing nuclear devices following an inquiry about inconsistent reporting from the International Atomic Energy Agency. Internal emails disclosed under the ATIA show the Vienna-based agency contacted officials in Ottawa after a Canadian Press investigation raised serious questions in July about how closely the Canadian Nuclear Safety Commission monitors devices that could be used in a crude ‘dirty bomb.’ Commission records revealed that dozens of radioactive tools - from an industrial gauge in Red Deer, Alta., to a device used for molecular separation in Montreal - had gone missing in the last five years.

- From Nuclear body to boost tracking of devices; Dozens of radioactive tools have gone missing, by Jim Bronskill and Sue Bailey, The Canadian Press. The Toronto Star, January 7, 2008

• • • • •

Abandoned explosives from bygone military training exercises could be scattered across more than two dozen native reserves in Canada, says a document released under the ATIA. A Defence Department list cites 25 reserves potentially laden with discarded explosives, ranging from Second World War-era bombs to anti-tank mortars and even torpedoes.

- From Abandoned military bombs found on dozen of reserves, by Steve Rennie. Kamloops Daily News, B.C., November 26, 2007

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The Environment

The Harper government was warned by its own environmental scientific experts that Canada would have to join an aggressive international campaign to fight global warming to avoid ‘substantial global and Canadian impacts’ or risk irreversible damage to the planet, revealed memorandums obtained under the ATIA.

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Prime Minister Harper recognized the threat of climate change at the meeting, but his government has never taken a stance on these warnings that allowing average temperatures to rise over a sustained period by two degrees could drastically affect the world. Although the Tory government has told the international community in negotiations that global emissions should be cut in half by 2050, the documents warn that even an 80 per cent cut might not be enough to avoid crossing a dangerous threshold.

- From Tories warned on climate; Damage to planet cited by expert, by Mike De Souza. Canwest News Service, Windsor Star. March 31, 2008

• • • • • A ‘made-in-Canada’ approach to target industrial greenhouse-gas emissions, fight climate change and spur new technology was ready for launch in 2006, federal documents released under the ATIA have revealed.

A memo from the top-ranking Environment Canada official, sent to cabinet, explained that a new climate change agency created by the previous Liberal government had ‘the potential to bring about significant, cost-effective transformational change in Canadian society,’ driving a new market system that would encourage such technologies as carbon capture and storage. The Tory government killed the agency after the end of its first year in office in 2007.

- From Tories spiked 'made in Canada' green plan; Harper killed agency created by Liberals early in his mandate, by Mike De Souza. The Gazette. Montreal, March 11, 2008

• • • • •

The Harper government has been warned that the ecological ‘footprint’ of the proposed Mackenzie Valley pipeline on an Arctic bird sanctuary that protects migratory birds and at-risk species such as polar bears could exceed the threshold deemed acceptable by Environment Canada, documents released under the ATIA reveal.

- From Pipeline 'footprint' sparks eco concerns; Scientists fear affect on at-risk Arctic species, by Andrew Mayeda. Calgary Herald, Aug. 19, 2008

• • • • •

Canada's stores of fresh water are not as plentiful as once thought, and water shortages threaten to pinch the economy and pit provinces against each other, says a document released under the ATIA. An internal report drafted last December by Environment Canada warns that climate change and a growing population will further drain resources. It suggests the federal government take a more hands-on role in managing the country's water, which is now largely done by the provinces.

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- From Beware water shortages, report warns Ottawa, by Steve Rennie. Daily Bulletin.Kimberley, B.C., Aug. 21, 2008

• • • • •

The federal government is rejecting calls to take over the regulation of uranium exploration despite mounting public concerns about the search for the radioactive metal, according to a ministerial briefing memo obtained through the ATIA. Some junior companies are now drilling for uranium in less remote areas, prompting protests from nearby residents and native groups who have called for a moratorium on uranium exploration because of environmental concerns.

- From Ottawa rejects call to guide uranium drilling, by Andy Hoffman. The

Globe and Mail, July 29, 2008

• • • • • Canada's nuclear safety watchdog appears to be too cozy with the industry it's supposed to monitor, suggests an independent report obtained under the ATIA. The study ordered by the Canadian Nuclear Safety Commission cites long-standing complaints that the regulator focuses far more on the companies it licenses than on concerned lobby groups or citizens.The commission ‘has in the past put more focus on communicating with licensees than with non-government organizations and the broader public,’ says the report by the Institute on Governance.

- From Nuclear watchdog too close to industry, report suggests, by Sue Bailey and Jim Bronskill. The Globe and Mail, October 9, 2007

• • • • •

The Conservative government announced that Canada is joining an international nuclear club that's drawn fierce criticism from environmentalists. The unexpected public declaration follows months of stone-walling and denials by government ministers and departmental officials, who refused to comment on Canada's assessment of the U.S.- led Global Nuclear Energy Partnership. And it could spell the end of Canada's heavily government-subsidized, decades-old relationship with Atomic Energy of Canada Ltd. Internal government documents obtained under the ATIA suggest that AECL's CANDU technology was shut out of initial GNEP discussions.

- From Canada to join international nuclear group despite concern about waste disposal, by Bruce Cheadle. Whitehorse Star, Yukon, November 30, 2007

• • • • •

Canada's nuclear safety watchdog rejected a preliminary report into last year's reactor shutdown that sparked a critical shortage of medical isotopes. In the wake of the medical

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isotope controversy, Atomic Energy of Canada Ltd. was supposed to explain why key safety measures were not in place at its research reactor in Chalk River, Ont. But the federal Crown corporation's January report instead focused on the communications breakdown between AECL and the Canadian Nuclear Safety Commission, say documents obtained under the ATIA.

- From Watchdog rejected AECL report into isotope controversy: documents, by Steve Rennie. Telegraph-Journal. Saint John, N.B., July 22, 2008

• • • • •

Environment Minister John Baird was urged to elaborate a national strategy to protect Canada's freshwater resources immediately after he took over his portfolio in January 2007. Briefing notes, prepared for Baird following the federal cabinet shuffle that brought him over to Environment Canada, highlighted a lack of coordination of policies to ensure clean, safe and secure water for the country's people and ecosystems. The documents, released under the ATIA, also say that a federal interdepartmental water committee is no longer active.

- From Baird urged to develop water strategy in 2007; Briefing notes highlighted need for coordination of policies, by Mike De Souza and Jack Aubry. The Gazette. Montreal, April 14, 2008

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Law and Order, National Security More than half of all RCMP in-custody deaths during the past five years occurred in B.C. despite the fact only a third of the force's officers work here, an internal report prepared by the Mounties has found. The report, obtained through the ATIA, provides a detailed analysis of all 80 RCMP in- custody deaths between 2002 and 2006, including police shootings.

- From B.C. Mounties have most deaths on their watch; Internal Report, by Chad Skelton. National Post, February 16, 2008

• • • • •

A tangle of conflicting laws on both sides of the border is tying the hands of joint Canada-U.S. border squads, undermining efforts to nab international criminals, says a report released under the ATIA. Team members can't radio one another. They have to surrender their sidearms when crossing into the other country. And they're forbidden from crossing the Canada-U.S. border except at official stations, even though criminals prefer the isolated points in between. The censored internal report, prepared by the public works department,

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examines the first five years of the Integrated Border Enforcement Teams, which expanded nationally in April 2002.

- From Border teams handcuffed, report says; Canadian, U.S. officers can't even talk by radio, by Dean Beeby, Canadian Press. Toronto Star. February 11, 2008

• • • • •

Screening officers at Canada's airports who ask passengers to empty their pockets have been given a stern warning: Stop emptying your own pockets into the X-ray machines. Maintenance technicians have found a heap of garbage inside the expensive machines, which are used to scan hand luggage, purses, jackets and other items for potential weapons.

The junk they've extracted includes candy wrappers, coins, paper clips, metal keys, hair clips - even utility knife blades, the very type of weapon the X-ray units are supposed to detect. ‘Likewise, warning labels and hazard warning signs are being damaged and are sometimes completely removed from the units,’ stated records released through the ATIA

- From Airport guards fouling x-rays; Warned not to toss trash into expensive machines, by Dean Beeby. The Toronto Sun, June 8, 2008

• • • • •

Canada's financial intelligence agency warns that criminals may be exploiting Internet-based companies that convert cash into electronic gold, exposing a new front in the international effort to restrict terrorist financing and money laundering. While other channels of money laundering are successfully being shut down, authorities are increasingly worried about a proliferation of ‘digital precious metals operators’ websites that offer clients a chance to conduct Internet business in units backed by gold and silver rather than paper currencies, according to records obtained under the ATIA.

- From Ottawa warns on gold-backed Web trades; FINTRAC sees potential abuse of electronic transactions tied to gold and silver, by Kevin Carmichael. The Globe and Mail, May 26, 2008

• • • • •

So-called white-label ATMs can be used to launder money with ease, leaving authorities struggling to track the dirty cash, says a federal watchdog agency. The Financial Transactions and Reports Analysis Centre of Canada (Fintrac) outlines a money-laundering scheme in a draft report obtained under the ATIA.

- From ATMs used to launder money. Winnipeg Free Press, Manitoba, December 18, 2007

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• • • • •

The diamond industry in Canada's Far North is vulnerable to smugglers looking to import ‘blood diamonds’ or launder the proceeds of organized crime syndicates and terrorist organizations. "Diamonds have been, and continue to be, a main source of currency for both terrorist organizations and organized crime,’ states a briefing note prepared by Citizenship and Immigration Canada, obtained under the ATIA. ‘Conflict/blood diamonds are used to fund rebel operations, purchase arms and other illicit activities (drugs). They are portable, high value and cannot be detected by any type of screening method.’

- From ‘Blood diamond' smuggling worries Ottawa; N.W.T. diamond boom has federal government concerned about crime, by Andrew Mayeda. Edmonton Journal, Sept. 7, 2008

• • • • •

Perhaps it was only a matter of time before gangsters adopted the device of choice among corporate workaholics: the BlackBerry. It has become so popular among B.C. gang members that an internal RCMP ‘threat assessment’ on organized crime - obtained by CanWest News Service through the ATIA - devotes an entire section to the device. It poses a big challenge for law enforcement, because encryption and security features make the devices much harder to wiretap than land lines or cellphones.

- From BlackBerrys ripe for organized crime; Security features makes devices popular with gangs, by Chad Skelton. Vancouver Sun, October 8, 2007

• • • • •

A Canadian passport is essentially a ‘get out of jail free card’ for people having sex with children overseas, says a law professor. ‘Canada has one of the worst records in the world on enforcing these laws,’ he said. ‘Are we going to back up our tough talk on child sexual exploitation with action?’

Prof. Benjamin Perrin, who teaches at the University of British Columbia, reviewed data obtained through the ATIA from the Department of Justice on sexual exploitation charges overseas. He found that 146 Canadians were charged with child sex offences overseas from 1993-2007, based on requests for consular support. However, only one Canadian has been convicted here under laws against child-sex tourism.

- From Sex tourism thriving; Since 1993, nearly 150 Canadians have been charged with sex crimes, by David Wylie. Harbour City Star. Nanaimo, B.C., April 9, 2008

• • • • • According to internal documents obtained by Maclean's under the ATIA, the sex offender registry is crippled by one major problem: Ottawa's obsession with privacy. The federal

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government is so determined to protect the rights of convicted sex offenders that most police officers are not allowed to access the system. ‘I'm not sure that public access is the answer, but I'm bloody sure this isn't the answer,’ says Paul Gillespie, former head of the Toronto police child exploitation unit. ‘This is a national embarrassment.’

- From ‘A National Embarrassment’: Canada's sex offender registry is so flawed that hundreds of molesters and other criminals have gone missing, by Michael Friscolanti. Maclean's magazine, January 14, 2008

• • • • • Terrorists plotted to blow up Canada-bound passenger planes over the mid-Atlantic in 2006, according to allegations that surfaced in a British courtroom in April 2008 at the start of what police are calling the world's biggest terrorism trial. Documents released under the ATIA show that Prime Minister Stephen Harper was briefed about the plot within hours of the arrests. A Memorandum for the Prime Minister dated Aug. 10 says Britain had ‘disrupted a major terrorist plot.’

It says the RCMP was cooperating with police in the United Kingdom, and Canadian officials had stepped up airport and border security. But neither the memo, nor a second sent to the Prime Minister on Aug. 31, mention that Canadian flights were targeted - although parts of the documents were blacked out prior to being released to the National Post.

- From Canada Named in Plot; Terrorists planned to bomb flights in 2006, by Stewart Bell. National Post, April 3, 2008

• • • • •

Countering the threat of terrorist radicalization at home is now the chief preoccupation of Canada's spy agency, the Canadian Security Intelligence Service. A study from CSIS found a ‘very rapid process’ is transforming some youths from angry activists into jihadist terrorists intent on killing for their religion. The study, obtained under the ATIA, says a few have embraced terrorism with frightening speed after becoming enraged over what they perceive as a western ‘war on Islam’ and being coaxed by extremist preachers.

- From CSIS focuses on homegrown terrorism threat; Spy agency studies issue of 'radicalization' of Canadian citizens, by Ian Macleod. The Ottawa Citizen, March 14, 2008

• • • • •

Canada's marine security regulations are riddled with gaps that put the country at risk, says a federal bureaucrat in a report, obtained under the ATIA. Transport Canada hastily drafted marine security regulations, largely copied from U.S. rules, after the 9/11 terrorist attacks, writes an award-winning civil servant and former naval officer: ‘It is the opinion

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of the author that this represents a significant risk to the health and economic security of Canadians by perpetuating vulnerabilities in the marine transportation sector.’

- From Gaps in marine security found, by Steve Rennie, Canadian Press. The Toronto Sun, January 24, 2008

• • • • •

Canada's spy agency is warily eyeing the possibility of violent protests against the 2010 Winter Olympics in British Columbia. The annual report of Canadian Security Intelligence Service director Jim Judd signals that the agency is actively gauging the prospect that demonstrations could turn ugly as opponents voice social and economic concerns about the Vancouver Games.

The heavily censored 27-page CSIS report – obtained under the ATIA - notes ‘the upcoming 2010 Winter Olympics may lead to protests with the potential for violence.’ The passage is part of a section of the report dealing with the activities of CSIS's Asia, Europe and Americas Branch, noting that in the Americas the service's ‘domestic and secessionist investigations’ include, among other concerns, white supremacists and Sikh and Tamil extremists - all long-standing interests of CSIS.

- From CSIS monitoring risk of violence at Olympics, by Jim Bronskill. The Globe and Mail, January 21, 2008

• • • • •

Three out of four suspects stun-gunned by the RCMP were unarmed, according to a review of 563 cases that shows Tasers are often used for compliance rather than to defuse major threats. An analysis by The Canadian Press of Taser incidents reported by the Mounties reveals that more than 79 per cent of those zapped were not brandishing a weapon. Statistics were released through the ATIA.

In slightly more than one-fifth of cases, the suspect had a knife, bottle, club or other weapon. The figures, compiled from hundreds of partially censored pages filed by RCMP officers, highlight preference for the 50,000-volt tool to help control dangerous situations with usually minimal injury. But they also suggest a pattern of use as a quick means to keep relatively low-risk prisoners, drunks and unruly suspects in line.

- From Most RCMP Taser targets are unarmed, review finds, by Jim Bronskill and Sue Bailey, The Canadian Press. The Toronto Star, November 19, 2007

• • • • •

The RCMP is stripping crucial details about Taser firings from public reports as use of the controversial stun guns skyrockets across the country. A joint investigation by The

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Canadian Press and CBC found the Mounties are now refusing to divulge key information that must be recorded each time they draw their electronic weapons.

Taser report forms obtained under the ATIA show the Mounties have used the powerful weapons more than 4,000 times since introducing them seven years ago. As Taser use escalates, however, the RCMP has tightened the lid of secrecy. Information stripped from the forms includes details of several Taser cases the Mounties previously made public under the access law. In effect, the RCMP is reclassifying details of Taser use - including some telling facts that raised pointed questions about how often the stun guns are fired and why. In fact, Canadians now know more about the Tasering of dogs than humans.

- From Mounties zap details from Taser reports as firings soar across Canada, by Jim Bronskill and Sue Bailey, The Canadian Press. The Vancouver Sun, March 24, 2008

• • • • •

The head of the national police force says the RCMP stumbled by keeping too many secrets on Taser use. The admission from Commissioner William Elliott came as fresh controversy erupted over Vancouver transit police zapping suspected free-riders on the city's light rail system. Elliott says the Mounties shouldn't have censored key details about stun gun firings across the country before agreeing to release more information.

‘Frankly, we didn't handle this very well,’ Elliott said Tuesday during a speech in Gatineau, Quebec. ‘We should not have needed two kicks at the can. We must learn from that, and do better.’

- From RCMP boss says police force should have done better on details of Taser transparency. Daily News, Prince Rupert, B.C., April 16, 2008

________________

Government Accountability Canada's spy agency is "lagging behind" other countries when it comes to telling the public about its work in the shadows, says an internal study obtained under the ATIA. The analysis prepared for the Canadian Security Intelligence Service found the agency's annual public report to be dull, timid and full of recycled information - unlike documents produced by allied spy services: ‘The expectation exists that CSIS will follow suit and be more open about its operations.’ The spy agency has not issued a report for the last two years; the most recent one covers 2004-05.

- From Internal report urges spy agency to change ways, be less secretive. Kamloops Daily News, B.C., January 12, 2008

• • • • •

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Statistics Canada broke its own rules during the 2006 census by neglecting to lock up sensitive records and allowing new hires to start working without proper security clearance, says a new audit says released under the ATIA. Census officials also failed to send out 81,000 paycheques to temporary workers on time, causing morale problems and damaging the agency's reputation.

- From Statscan breached own privacy standards, audit finds, by Dean Beeby. The Globe and Mail, December 24, 2007

• • • • •

A serious gender gap exists within the RCMP in B.C., with female officers far less likely than their male colleagues to believe they are treated fairly and that their rights are respected, according to an internal survey obtained through the ATIA. In a phone interview, Eli Sopow, the civilian RCMP employee who conducted the survey, said the results have troubled senior brass: ‘The officers here are taking this very seriously and saying we've got to improve this and improve it significantly.’

- From RCMP still old boys club: survey, by Chad Skelton. Kamloops Daily News, B.C., October 29, 2007

• • • • •

Canada was cast as a bad actor that aggressively campaigned alongside countries with tarnished human-rights records in its failed bid to derail the United Nations Declaration on the Rights of Indigenous Peoples. The non-binding declaration was expected to be adopted in September 2007 by the UN General Assembly.

The Conservatives said the declaration is flawed, vague and open to broad interpretation. In fact, documents released to Amnesty International under the ATIA show that the government fought against the declaration despite advice from its own officials in Foreign Affairs, Indian Affairs and National Defence, all of them urging its support.

- From Canada slammed over UN declaration, by Sue Bailey. The Globe and Mail. September 7, 2007

The Public’s Money

An Ottawa Citizen investigation found about 1 in 20 gas pumps in Canada was pumping less gas than indicated on the readout when inspected, according to Measurement Canada inspection data obtained under the ATIA.

By using the most conservative figures, pumps that fell outside the tolerance zone would have shortchanged consumers by at least $17 million annually if projected across the

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entire industry. At the same time, however, fast pumps would give out $8 million in free gas. On the small percentage of pumps outside the tolerance zone, consumers come out about $9 million behind. But if pumps that passed inspection also skewed against the consumer by about the same rate within the tolerance zone, Canadian drivers would be out of pocket even more.

Days after the story appeared, Industry Minister Jim Prentice ordered increased inspection of retail gas pumps across the country, saying, ‘I've instructed that there be beefed-up inspection and beefed-up verification, that pumps are honest and accurate.’

- You're not getting the gas you pay for: Five per cent of pumps cheat buyers, probe shows, by Glen McGregor, Ottawa Citizen, May 10, 2008

• • • • •

Federal auditors are targeting some of the biggest names in corporate Canada for allegedly overcharging millions of dollars in their contracts with government, heavily censored records released through the ATIA showed. There were 62 contracts in dispute as of Aug. 31, 2007, with auditors alleging some corporations have claimed for ineligible costs, excess profits, overpriced goods, incorrect wage rates and a dozen other problems altogether worth about $9.5-million.

- From Federal auditors investigate alleged overcharging by corporations, by Dean Beeby, Canadian Press. The Globe and Mail, January 30, 2006

• • • • • Federal bureaucrats at the Department of Fisheries and Oceans routinely fail to justify their use of untendered contracts, despite scandals that have shown the perils of buying goods and services without using a competitive process. A new audit of 141 contracts awarded by the department has found that in more than half the cases of untendered contracts, there is no justification in the file to explain the lack of a competition.

- From Fisheries audit probes untendered contracts, by Daniel LeBlanc. The Globe and Mail, December 11, 2006

• • • • •

Natural Resources Canada has ordered an investigation into the way the federal government collects offshore oil royalties after auditors uncovered a series of shoddy accounting practices, records disclosed under the ATIA reveal.

- From Fed oil royalties a little crude; Natural Resources audits reveal shoddy accounting, by Dean Beeby, The Toronto Sun, May 26, 2008

• • • • •

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The Conservative government scrambled to explain a report that the Afghanistan mission will run $1 billion over budget this fiscal year. Documents obtained under the ATIA indicate the mission has cost Canadian taxpayers at least $7.5 billion since 2001 - double what was budgeted.

The government did not deny the budget blowout for 2007-08 reported in La Presse newspaper. It simply warned that the $1 billion was based on preliminary estimates that cannot be confirmed until after the end of the fiscal year in March. The report came two days before a scheduled confidence vote in the Commons on extending Canada's military mission in Afghanistan.

- From War $1B over budget: report; Tories scramble to explain cost overrun of Afghan mission, by Alexander Panetta, Canadian Press. The Toronto Sun, March 12, 2008

• • • • •

A federal department has been buying its employees expensive memberships in groups that lobby the government - a potential conflict-of-interest, says a new report released under the ATIA.

The audit found that Natural Resources Canada spent almost $1-million in 2006 on memberships in professional bodies, or an average of about $300 for each employee. It says the spending is far in excess of amounts spent by other departments and too often takes place without any apparent consideration of ethics.

- From Natural Resources audit reveals potential conflicts; Department spent $1-million on memberships in professional organizations, some of which lobby Ottawa, by Dean Beeby. The Globe and Mail, November 5, 2007

• • • • •

The bulk of a $10 million federal research loan given to a Michelin tire factory in Nova Scotia isn't due until 2041 - terms that leave another borrower questioning the program's fairness. Details of the 2006 loan, obtained through the ATIA, say the Atlantic Canada Opportunities Agency requires Michelin to provide 29 annual payments of $85,000 - culminating in a single, final payment of $7.53 million more than three decades from now.

- From Michelin plant gets sweet deal on federal loan; Bulk of repayment not due for 3 decades, another research fund borrower points out, by Michael Tutton, The Canadian Press. The Toronto Star, February 18, 2008

• • • • •

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Most Canadian charities that provide disaster relief at home and abroad are breaking the rules, suggests a new probe by the Canada Revenue Agency. More than half of the 27 disaster-relief charities randomly picked for close scrutiny by the agency's charities directorate failed to meet standards - including some that handed over donations to ‘non-qualified’ recipients abroad, says an internal report obtained under the ATIA.

- From Charities breaking the rules, probe finds, by Dean Beeby. The Globe and Mail, November 19, 2007

• • • • •

Large corporations scooped up the lion's share of almost $1-billion in federal tax credits designed to stimulate Canadian film and video productions, says a federal government report released under the ATIA. ‘The allocation of the tax credit was extremely concentrated,’ according to the Finance Department report. ‘Corporate groups received a large share of the tax credit, with the top 10 receiving close to 30 per cent of the total.’

- From Large corporations receive bulk of film tax credits. The Canadian Press. The Globe and Mail, April 14, 2008

• • • • • Toronto's Pearson airport gets low marks for efficiency and fee levels in a ‘scorecard’ created by Transport Canada, rankings that help confirm the airport's global reputation as a high-cost facility for both airlines and passengers. The draft scorecards were obtained under the ATIA. ‘For all measures of cost efficiency ... Toronto was significantly poorer than either Vancouver or Calgary,’ says the report by the non-profit agency Transport 2000.

- From Pearson costlier way to fly, report shows; Draft figures show Toronto's airport has higher fees, less efficiency than Vancouver or Calgary, by Dean Beeby, The Canadian Press. The Toronto Star, March 17, 2008

• • • • •

The federal government transfers money electronically into the wrong bank accounts more than 3,000 times each year, newly disclosed documents show. And these rogue direct deposits, which accidentally enrich the wrong people, have been worth as much as $181,000 in a single transaction. Internal spreadsheets detailing the problem of ‘misdirected direct deposits’ were obtained under the ATIA.

- $1.9-million in federal cheques directly deposited to wrong accounts, by Dean Beeby. The Globe and Mail, March 3, 2008

• • • • •

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Soaring drug bills in Canada could be cut if doctors simply paid attention to the cost of the medications they prescribe, says a federal report. The study by IMS Health Consulting Inc. and commissioned by Industry Canada, found that Canadian physicians are generally oblivious to drug prices and often prescribe an expensive pharmaceutical when a cheap one would do.

The situation is better in the United States and Great Britain, where health-management systems that do take drug prices into account help reduce pharmacy bills. The 2007 document was released under the ATIA. IMS fought its release in Federal Court for several months before recently withdrawing the legal challenge.

- MDs prescribe costly drugs, not generics Study; Report says alerting doctors to prices could help cut country's bill, by Dean Beeby. Toronto Star, October 22, 2007

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Sources for FOI statute comparisons, model FOI laws,

and recommendations for best FOI practices,

cited in this report’s chapters

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Canada Federal government of Canada - Access to Information Act, 1982 http://www.infocom.gc.ca/acts/default-e.asp Nova Scotia - Freedom of Information and Protection of Privacy Act, 1977 http://foipop.ns.ca//legislation.html New Brunswick - Right to Information Act, 1978 http://www.gnb.ca/0073/info-e.asp Newfoundland and Labrador – Freedom of Information and Protection of Privacy Act (1981) / Access to Information and Protection of Privacy Act (2002) http://www.oipc.gov.nl.ca/legislation.htm Quebec - An Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information, 1982 http://www.cai.gouv.qc.ca/index.html Yukon Territory - Access to Information and Protection of Privacy Act, 1984 http://www.atipp.gov.yk.ca/ Manitoba – Freedom of Information and Protection of Privacy Act, 1985 http://www.ombudsman.mb.ca/legislation.htm Ontario - Freedom of Information and Protection of Privacy Act, 1987 http://www.ipc.on.ca/index.asp?navid=4 Ontario Municipal Freedom of Information and Protection of Privacy Act, 1990 http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90m56_e.htm Saskatchewan - Freedom of Information and Protection of Privacy Act, 1991 http://www.oipc.sk.ca/legislation.htm Saskatchewan municipalities - Local Authority Freedom of Information and Protection of Privacy Act, 1991 http://www.qp.gov.sk.ca/documents/English/Statutes/Statutes/L27-1.pdf

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British Columbia - Freedom of Information and Protection of Privacy Act, 1992 http://www.oipc.bc.ca/legislation.htm Alberta - Freedom of Information and Protection of Privacy Act, 1994 http://www.oipc.ab.ca/foip/read.cfm

Northwest Territories - Access to Information and Protection of Privacy Act, 1994 http://www.justice.gov.nt.ca/ATIPP/atipp.htm Nunavut - Access to Information and Protection of Privacy Act (Nunavut), 2000 http://www.info-privacy.nu.ca/en/home Prince Edward Island – Freedom of Information and Protection of Privacy Act, 2001 http://www.gov.pe.ca/foipp/index.php3

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NATIONAL FOI LAWS Albania - The Law on the Right to Information for Official Documents, 1999 http://www.freedominfo.org/countries/albania.htm Angola - Law on Access to Documents Held by Public Authorities, 2002 (In Portuguese, no English text could be found) http://www.freemedia.at/cms/ipi/freedom_detail.html?country=/KW0001/KW0006/KW0140/ Antigua and Barbuda (Commonwealth) - Freedom of Information Act, 2004 http://www.ab.gov.ag/gov_v2/government/parliament/laws/freedom_of_info.pdf Argentina - The Access to Public Information Regulation (No English translation available), 2003 http://www.freedominfo.org/countries/argentina.htm Armenia - Law on Freedom of Information, 2003 http://www.freedominfo.org/countries/armenia.htm Australia (Commonwealth) - Freedom of Information Act, 1982 http://www.freedominfo.org/countries/australia.htm Austria - Auskunftspflichtgesetz (Federal Law on the Duty to Furnish Information), 1987 http://www.freedominfo.org/countries/austria.htm Belgium - Law on the right of access to administrative documents held by federal public authorities (No English translation available), 1994 http://www.freedominfo.org/countries/belgium.htm

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Belize (Commonwealth) – Freedom of Information Act, 1994 http://www.freedominfo.org/countries/belize.htm Bosnia and Herzegovina - Freedom of Access to Information Act, 2001 http://www.freedominfo.org/countries/bosnia.htm Bulgaria - Access to Public Information Act, 2006 http://www.freedominfo.org/countries/bulgaria.htm Chile - Ley sobre Transparencia de la Función Pública y Acceso a la Información de los Órganos de la Administración del Estado (Law on Transparency of Public Functions and Access to Information of the Agencies of State), 2008. In Spanish, no English translation. http://www.freedominfo.org/news/20080813.htm

China - People’s Republic of China Ordinance on Openness of Government Information (OGI Regulations), 2007 http://freedominfo.org/features/20070509.htm Columbia - The Law Ordering the Publicity of Official Acts and Documents (No English translation available), 1985 http://www.freedominfo.org/countries/colombia.htm Cook Islands (Commonwealth) - An Act to make official information more freely available, to establish procedures for the achievement of those purposes, and to repeal the Official Secrets Act 1951, 2008 http://www.cookislandsnews.com/OIA.htm Croatia - Act on the Right of Access to Information, 2003 http://www.freedominfo.org/countries/croatia.htm Czech Republic - Law on Free Access to Information, 1999 http://www.freedominfo.org/countries/czech.htm Denmark - Access to Public Administration Files Act, 1985 http://www.freedominfo.org/countries/denmark.htm Ecuador - Organic Law on Transparency and Access to Public Information, LOTAIP (No English translation available), 2004 http://www.freedominfo.org/countries/ecuador.htm Estonia - Public Information Act, 2000 http://www.freedominfo.org/countries/estonia.htm Finland - Act on the Openness of Government Activities, 1999 http://www.freedominfo.org/countries/finland.htm France - Law on Access to Administrative Documents, 1978 http://www.freedominfo.org/countries/france.htm

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Georgia - The General Administrative Code of Georgia - Chapter 3, Freedom of Information, 1999 http://www.freedominfo.org/countries/georgia.htm Germany - Act to Regulate Access to Federal Government Information, 2005 http://www.freedominfo.org/countries/germany.htm Greece - Code of Administrative Procedure, 1986 http://www.freedominfo.org/countries/greece.htm Hungary - Protection of Personal Data and Disclosure of Data of Public Interest, 1992 http://www.freedominfo.org/countries/hungary.htm Iceland - Upplysingalög (Information Act), 1996 http://www.freedominfo.org/countries/iceland.htm India (Commonwealth) - Right to Information Act, 2005 http://www.freedominfo.org/countries/india.htm Indonesia - The Law Regarding Transparency of Public Information, 2008 http://www3.telus.net/index100/indonesiafoi Iran – Passed May 2008. See ‘The approval of the freedom of information bill with extensive changes’ published by Iranian newspaper E'temad website 8 May 2008. BBC Monitoring Middle East. No English text of the law available yet. Ireland - Freedom of Information Act, 1997 http://www.freedominfo.org/countries/ireland.htm Israel - Freedom of Information Law, 1998 http://www.freedominfo.org/countries/israel.htm Italy - Law No. 241, 1990 http://www.freedominfo.org/countries/italy.htm Jamaica (Commonwealth) - Access to Information Act, 2002 http://www.freedominfo.org/countries/jamaica.htm Japan - Law Concerning Access to Information Held by Administrative Organs, 1999 http://www.freedominfo.org/countries/japan.htm Jordan - Law on Securing the Right to Information Access, 2007 http://www3.telus.net/index100/jordanfoi South Korea - Act on Disclosure of Information by Public Agencies, 1996 http://www.freedominfo.org/countries/south_korea.htm

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Kosovo - Law on Access to Official Documents, 2003 http://www.freedominfo.org/countries/kosovo.htm Kyrgyzstan - Law of the Kyrgyz Republic on access to information held by state bodies and local self-government bodies of the Kyrgyz Republic, 2006 http://www.article19.org/pdfs/analysis/kyrgyzstan-foi-06.pdf Latvia - Law on Freedom of Information, 1998 http://www.freedominfo.org/countries/latvia.htm Liechtenstein - Informationsgesetz, The Information Act, 1999 (No English translation available) http://www.freedominfo.org/countries/liechtenstein.htm Lithuania - Law on the Provision of Information to the Public, 2000 http://www.freedominfo.org/countries/lithuania.htm Macedonia - Law on Free Access to Information of Public Character, 2006 http://www.freedominfo.org/countries/macedonia.htm Mexico - Federal Law of Transparency and Access to Public Government Information, 2002 http://www.freedominfo.org/countries/mexico.htm Moldova - Law on Access to Information, 2000 http://www.freedominfo.org/countries/moldova.htm Montenegro - Law on Free Access to Information, 2005 http://www.freedominfo.org/countries/montenegro.htm Nepal - Right to Information Act 2007 http://www.internationalmedialawyers.org/cgi-bin/blog/blosxom.cgi#rti_nepal.html Netherlands - Government Information (Public Access) Act, 1991 http://www.freedominfo.org/countries/netherlands.htm New Zealand (Commonwealth) - Official Information Act, 1982 http://www.freedominfo.org/countries/new_zealand.htm Nicaragua - Ley de Acceso a la Informacion publica, 2007 (In Spanish, no English text available) http://www3.telus.net/index100/nicaraguafoi Norway - Freedom of Information Act, 1970 http://www.freedominfo.org/countries/norway.htm Pakistan (Suspended from Commonwealth in 2007) - An Ordinance to provide for transparency and freedom of information. Ordinance no. XCVI, 2002 http://freedominfo.org/countries/pakistan.htm

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Panama - Law on Transparency in Public Administration (No English translation available), 2001 http://www.freedominfo.org/countries/panama.htm

Peru - Law of Transparency and Access to Public Information, 2002 http://www.freedominfo.org/countries/peru.htm Philippines - Code of Conduct and Ethical Standards for Public Officials and Employees, 1987 http://www.freedominfo.org/countries/philippines.htm Poland - Law on Access to Public Information, 2001 http://www.freedominfo.org/countries/poland.htm Portugal - Law of Access to Administrative Documents (LADA), 1993 http://www.freedominfo.org/countries/portugal.htm Romania - Law Regarding Free Access to Information of Public Interest, 2001 http://www.freedominfo.org/countries/romania.htm Serbia - Law on Free Access to Information of Public Importance, 2004 http://www.freedominfo.org/countries/serbia.htm Slovakia - Act on Free Access to Information, 2000 http://www.freedominfo.org/countries/slovakia.htm Slovenia - Access to Public Information Act (ZDIJZ), 2003 http://www.freedominfo.org/countries/slovenia.htm South Africa (Commonwealth) - Promotion of Access to Information Act (PAIA), 2000 http://www.freedominfo.org/countries/south_africa.htm Spain - Law on Rules for Public Administration (No English translation available), 1992 http://www.freedominfo.org/countries/spain.htm St. Vincent and the Grenadines (Commonwealth) - Freedom of Information Act, 2003 http://www.humanrightsinitiative.org/programs/ai/rti/international/laws_papers/vincent/foi_act_2003.pdf Sweden - Freedom of the Press Act, 1949 (Sweden also had world's first Freedom of Information Act, in 1766) http://www.freedominfo.org/countries/sweden.htm Switzerland - Federal Law on the Principle of Administrative Transparency (No English translation available), 2004 http://www.freedominfo.org/countries/switzerland.htm Taiwan - Freedom Of Government Information Law, 2005 http://law.moj.gov.tw/Eng/Fnews/FnewsContent.asp?msgid=2636&msgType=en&keyword=government+information (English translation)

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Tajikistan - Law of the Republic of Tajikistan on Information (No English translation available), 2002 http://www.freedominfo.org/countries/tajikistan.htm Thailand - Official Information Act, 1997 http://www.freedominfo.org/countries/thailand.htm Trinidad and Tobago (Commonwealth) - Freedom of Information Act, 1999 http://www.freedominfo.org/countries/trinidad_tobago.htm Turkey - Law on Right to Information, 2003 http://www.freedominfo.org/countries/turkey.htm Uganda (Commonwealth) - Access to Information Act, 2005 http://www.humanrightsinitiative.org/programs/ai/rti/international/laws_papers/uganda/uganda_ati_act_2005.pdf Ukraine - Law on Information, 1992 http://www.freedominfo.org/countries/ukraine.htm United Kingdom (Commonwealth) - Freedom of Information Act, 2000 http://freedominfo.org/countries/united_kingdom.htm United States - The Freedom of Information Act, 1966 http://www.freedominfo.org/countries/united_states.htm Uzbekistan - Law on the Principles and Guarantees of Freedom of Information, 2002 http://www.freedominfo.org/countries/uzbekistan.htm Zimbabwe (Left Commonwealth in 2003) - Access to Information and Privacy Protection Act (AIPPA), 2002 http://www.freedominfo.org/countries/zimbabwe.htm

Non- National FOI Laws or Regulations Hong Kong - Code on Access to Information, 1995 http://www.freedominfo.org/countries/hong_kong.htm Scotland (Commonwealth) - Freedom of Information (Scotland) Act, 2002 http://www.hmso.gov.uk/legislation/scotland/acts2002/20020013.htm Wales (Commonwealth) - Code of Practice on Public Access to Information, 2004 http://www.information.wales.gov.uk/content/code/cop-1204-e.pdf Guangzhou municipality (China), Guangzhou Municipal Provisions on Open Government Information, 2002 http://islandia.law.yale.edu/chinalaw/html/publications.htm

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Shanghai municipality (China), Shanghai Municipal Provisions on Open Government Information, 2004 http://islandia.law.yale.edu/chinalaw/html/publications.htm

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Draft FOI statutes, for jurisdictions that

have not yet have enacted a law; or right to information

statements in constitutions

Azerbaijan - Written analysis of two alternative Azerbaijani draft laws on Freedom of information, by Jan van Schagen. Organization for Security and Co-operation in Europe (OSCE), 2004. http://www.osce.org/documents/rfm/2006/07/19942_en.pdf and http://www.alac-az.org/transpfiles/klim40.pdf Abkhazia (a region in Caucasus, seeking independence from Georgia) - Memorandum on the draft Law of Abkhazia on the Right of Access to Information, by ARTICLE 19, London, 2006 http://www.article19.org/pdfs/analysis/abkhazia-foi-06.pdf and http://www.article19.org/pdfs/laws/Abkhazia.FOI.Aug06.doc Bangladash (Commonwealth) - Memorandum on the Law Commission of the Republic of Bangladesh Working Paper on the Proposed Right to Information Act 2002, by ARTICLE 19, London, 2004. http://www.article19.org/pdfs/analysis/bangladesh-right-to-information-act.pdf http://www.humanrightsinitiative.org/programs/ai/rti/international/laws_papers/bangladesh/analysis_bangladesh_rti_bill.pdf Belarus - Memorandum on the draft Law of the Republic of Belarus “On the introduction of Amendments and Additions to the Law ‘On Press and other Mass Media,” by ARTICLE 19, London, 2003 http://www.osce.org/documents/rfm/2003/12/1601_en.pdf Bolivia – An Analysis of the International Norms and Bolivian Draft Law, by Laura Neuman. The Carter Center: The Promotion of Democracy Through Access to Information: Bolivia. Atlanta, Georgia. May 2004. http://www.cartercenter.org/documents/2012.pdf Brazil - Memorandum on a proposed draft Bill on Freedom of Information for Brazil, by ARTICLE 19, London, 2005 http://www.article19.org/pdfs/analysis/brazil-freedom-of-information-act.pdf Cayman Islands (Commonwealth) - Memorandum on the Draft Law to Give the Right of Access to Information in the Cayman Islands, by ARTICLE 19, London, 2006

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http://www.article19.org/pdfs/analysis/cayman-islands-foi.pdf Costa Rica - Memorandum on Transparency International of Costa Rica’s Law on Access to Information and the Protection of Privacy, by ARTICLE 19 Global Campaign for Free Expression, London, 2002 http://www.article19.org/pdfs/analysis/costa-rica-freedom-of-information-and-privacy-.pdf Fiji Islands (Suspended from Commonwealth in 2006) - Submission on the Fiji Draft Freedom of Information Bill, by ARTICLE 19, London, January 1999. http://www.article19.org/pdfs/analysis/fiji-freedom-of-information-1999.pdf Ghana (Commonwealth) - Memorandum on the draft Right to Information Bill of the Republic of Ghana ,by ARTICLE 19, London, 2003 http://www.article19.org/pdfs/analysis/ghana-freedom-of-information.pdf http://www.humanrightsinitiative.org/programs/ai/rti/ghana/ghana.htm Guatemala - Memorandum on The Republic of Guatemala’s Draft Law on Free Access to Information, by ARTICLE 19 Global Campaign for Free Expression, London, 2003 http://www.article19.org/pdfs/analysis/guatemala-freedom-of-information-2003-draft.pdf Guyana (Commonwealth) - Freedom of Information Bill, final draft, 2005 http://www.humanrightsinitiative.org/programs/ai/rti/international/laws_papers/guyana/guyana_foi_bill_2005_draft_submitted_in_parl.pdf http://www.humanrightsinitiative.org/programs/ai/rti/international/laws_&_papers.htm#1 Kenya (Commonwealth) - Memorandum on Kenya’s Freedom of Information Bill, by Article 19, London 2006 http://www.article19.org/pdfs/analysis/kenya-foi.pdf Lebanon - The Lebanese Transparency Association (LTA) reported that ‘in November 2001 the [Lebanese] Administrative Development Ministry introduced the Citizen's Charter, a document that gives citizens the Right to Access Public Information and specifies a code of conduct for civil servants. The charter falls short of granting Access to Information, as it lacks the mechanism for implementation.' (No text online.) Lesotho (Commonwealth) - Access and Receipt of Information Bill, 2000. http://www.humanrightsinitiative.org/programs/ai/rti/international/laws_papers/lesotho/ari_bill_2000.pdf http://www.humanrightsinitiative.org/programs/ai/rti/international/laws_papers/lesotho/draft_ari_bill_chri_analysis.pdf Malaysia (Commonwealth) - Right to Information Bill for the state of Kelantan, drafted by the Malaysian Freedom of Information Advocates Coalition in 2006 http://www.humanrightsinitiative.org/programs/ai/rti/international/laws_papers/malaysia/malaysia_kelantan_draft_bill_critique.pdf

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Malawi (Commonwealth) - Memorandum on the Draft Malawian Access to Information Bill, by ARTICLE 19, London, 2004 http://www.article19.org/pdfs/analysis/malawi-access-to-info-bill-march-2004.pdf Maldives (Commonwealth) - Maldives Draft Freedom of Information Bill & Recommendations for Amendments, analysis by the Commonwealth Human Rights Initiative, CHRI, 2006 http://www.humanrightsinitiative.org/programs/ai/rti/international/laws_papers/maldives/draft_foi_bill_chri_analysis.pdf Mongolia - Comment on the Draft Law of Mongolia on Freedom of Information by ARTICLE 19, London, 2006 http://www.article19.org/pdfs/analysis/mongolia-foi-law.pdf Mozambique (Commonwealth) – Note on the draft Law of Mozambique on Access to Official Sources of Information, by ARTICLE 19, London, 2005 http://www.article19.org/pdfs/analysis/mozambique-information-law-feb-2004.pdf Nigeria (Commonwealth) - Memorandum on the Nigerian Freedom of Information Bill, by ARTICLE 19, London, 2000 http://www.article19.org/pdfs/analysis/nigeria.foi.00.pdf http://www.humanrightsinitiative.org/programs/ai/rti/international/laws_&_papers.htm#1 Palestine - Memorandum on a draft Law on Access to Information for Palestine, by ARTICLE 19, London, 2005 http://www.article19.org/pdfs/analysis/palestine-2005.pdf Papua New Guinea (Commonwealth) - Freedom of Information program to enhance citizens' access to public information in Papua New Guinea, by Transparency International, 1998 http://www.humanrightsinitiative.org/programs/ai/rti/international/laws_papers/png/PNG%20Draft%20FOI%20Bill.pdf Paraguay - Memorandum on the draft Paraguayan Free Access to Public Information Law, by ARTICLE 19, London, 2004 http://www.article19.org/pdfs/analysis/paraguay-access-to-information-feb-2004.pdf Russian Federation - Memorandum on the Russian Federal Law “On Access to Information Concerning Activities of Government Departments and Local Self-Government,” by ARTICLE 19, London, 2003 http://www.article19.org/pdfs/analysis/russia.foi.01.pdf Access to Information in Russia, by Savintseva Marina, lawyer, program coordinator of Access to Information, Transparency International – Russia, June 2006. http://www.transparency.org.ru/doc/ACCESS_TO_INFORMATION_IN_RUSSIA_2006_01252_6.doc

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Sierra Leone (Commonwealth) - Sierra Leone’s draft Access to Information Bill Statement of Support, by ARTICLE 19, London, 2005. http://www.article19.org/pdfs/analysis/sierra-leone.foi.advice.05.pdf http://www.humanrightsinitiative.org/programs/ai/rti/international/laws_&_papers.htm#1 Sri Lanka (Commonwealth) - Comments on Draft Sri Lankan FOI Law, by ARTICLE 19, London, 2003 http://www.article19.org/pdfs/analysis/sri-lanka.foi.03.pdf http://www.humanrightsinitiative.org/programs/ai/rti/international/laws_papers/srilanka/freedom_of_information.pdf St. Kitts and Nevis (Commonwealth) - St. Kitts and Nevis Freedom of Information Bill 2006, analysis by Cecelia Burgman, Commonwealth Human Rights Initiative, 2007 http://www.humanrightsinitiative.org/programs/ai/rti/international/laws_papers/kitts_nevis/st_christopher_nevis_foi_bill_2006.pdf Tanzania (Commonwealth) - Draft Freedom of Information Bill, 2006. http://www.humanrightsinitiative.org/programs/ai/rti/international/laws_papers/tanzania/draft_foi_bill_2006.pdf Uganda (Commonwealth) - Memorandum on the Ugandan draft Access to Information Bill, by ARTICLE 19, London, 2004 http://www.article19.org/pdfs/analysis/uganda-bill-no.-7.pdf Vanuatu (Commonwealth) - Freedom of Information Bill, 2006, drafted by Transparency International Vanuatu for consideration by civil society and the Government. The Commonwealth Human Rights Initiative wrote a detailed analysis of this draft bill http://www.humanrightsinitiative.org/programs/ai/rti/international/laws_papers/vanuatu/vanuatu_draft_foi_bill_2006_chri_critique.pdfs

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Jurisdictions with no comprehensive draft FOI bills yet, and

no immediate prospects for an FOI law: Afghanistan, Algeria, Bahamas, Barbados, Benin, Bermuda, Bhutan, Brunei, Burkina Faso, Burundi, Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Congo, Congo Democratic Republic, Cuba, Cyprus, Djibouti, Dominica, East Timor, Egypt, El Salvador, Equatorial Guinea, Guinea Bissau, Haiti, Honduras, Iraq, Ivory Coast, Kazakhstan, Kiribati, Kuwait, Laos, Lebanon, Liberia, Libya, Madagascar, Malaysia, Mali, Malta, Marshall Islands, Mauritania, Mauritius, Micronesia, Morocco, Myanmar/Burma, Namibia, Nauru, Niger, North Korea, Oman, Palau, Qatar, Rwanda, Samoa, Sao Tome and Principe, Saudi Arabia, Senegal, Seychelles, Solomon Islands, Somalia, St. Lucia, Sudan, Surinam, Syria, Togo, Tonga, Tunisia, Tuvalu, Turkmenistan, United Arab Emirates, Uruguay, Venezuela, Vietnam, West Sahara, West Samoa, Yemen.

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Some transparency rules, or an FOI law pending or promised: Lebanon, Luxembourg, Swaziland, Cambodia, Botswana.

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FOI Policies and Best Practice Recommendations from

World Non-Governmental Organizations

African Union, and African Commission on Human and Peoples’ Rights • Declaration of Principles of Freedom of Expression in Africa. IV. Freedom of Information. Gambia, October 2002 http://www.achpr.org/english/declarations/declaration_freedom_exp_en.html The African Union (AU) is a supranational union consisting of fifty-three African states. Established in 2001, the purpose of the union is to help secure Africa's democracy, human rights, and a sustainable economy, especially by bringing an end to intra-African conflict and creating an effective common market.

Council of the League of Arab States • Arab Charter on Human Rights, May 23, 2004 (Text not online) The Arab League, also called League of the Arab States, is a regional organization of Arab States in the Middle East and North Africa. It was formed in Cairo on March 22, 1945 and currently has 22 members. The Arab League is involved in political, economic, cultural, and social programs designed to promote the interests of member states.

ARTICLE 19

• (1) Toby Mendel, head of the Law Programme of Article 19, The Public’s Right to Know: Principles of Freedom of Information Legislation. London, June 1999 http://www.article19.org/pdfs/standards/modelfoilaw.pdf ENDORSEMENTS – ‘These Principles were endorsed by Mr. Abid Hussain, the UN Special Rapporteur on Freedom of Opinion and Expression, in his report to the 2000 session of the United Nations Commission on Human Rights, and referred to by the Commission in its 2000 resolution on freedom of expression. They were also endorsed by Mr. Santiago Canton, the Organization of American States (OAS) Special Rapporteur on Freedom of Expression in his 1999 Report, Volume III of the Report of the Inter-American Commission on Human Rights to the OAS.’ • (2) Toby Mendel, A Model Freedom of Information Law. London, 2001 http://www.article19.org/pdfs/standards/righttoknow.pdf

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ARTICLE 19 is a London-based human rights organisation with a specific mandate and focus on the defence and promotion of freedom of expression and freedom of information worldwide. The organisation takes its name from Article 19 of the Universal Declaration of Human Rights. ARTICLE 19 is a founding member of the Freedom of Information Advocates (FOIA) Network, a global forum that aims to support transparency.

Campaign for Open Government (Great Britain) • The Right to Know Bill, 1993 http://www.cfoi.org.uk/opengov.html#rtk

The Campaign for Freedom of Information was founded in 1984, and has been headed by Maurice Frankel since 1987. The Right to Know Bill was a freedom of information bill drafted by the Campaign and introduced by Mark Fisher MP in 1993. It completed its committee stage but was then blocked by the Government at its report stage in July 1993.

The Carter Center

• Access to Information, a Key to Democracy, edited by Laura Neuman. Chapter: Access to Information: How is it Useful and How is it Used? Key Principles for a Useable and User-Friendly Access to Information Law, by Dr. Richard Calland. Atlanta, Georgia, November 2002 http://www.cartercenter.org/documents/1272.pdf The Carter Center is a nongovernmental, not-for-profit organization founded in 1982 by former U.S. President Jimmy Carter and his wife Rosalynn Carter. In partnership with Emory University, The Carter Center works to advance human rights and alleviate human suffering. The Atlanta-based center has helped to improve the quality of life for people in more than 70 countries. In 2002, President Carter received the Nobel Peace Prize.

The Commonwealth • (1) Commonwealth Secretariat, Model Freedom of Information Bill. London, 2002 http://www.thecommonwealth.org/shared_asp_files/uploadedfiles/%7BAC090445-A8AB-490B-8D4B-F110BD2F3AB1%7D_Freedom%20of%20Information.pdf • (2) Commonwealth Parliamentary Association, Recommendations for Transparent Governance. Conclusions of the Commonwealth Parliamentary Association. World Bank Institute Study Group on Access to Information. Ghana, 2004 http://www.humanrightsinitiative.org/programs/ai/rti/international/cw_standards/recommendations_for_transparent_governance.pdf • (3) Commonwealth Human Rights Initiative (CHRI), Open Sesame: Looking for the Right to Information in the Commonwealth. New Delhi, India, 2003 http://www.humanrightsinitiative.org/publications/chogm/chogm_2003/chogm%202003%20report.pdf

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When capitalized, ‘Commonwealth’ normally refers to the 53 member Commonwealth of Nations - formerly the ‘British Commonwealth’- which is a loose confederation of nations formerly members of the British Empire, including Canada. The (appointed, not hereditary) head of the Commonwealth of Nations is Queen Elizabeth II.

Council of Europe, Committee of Ministers • Recommendations on Access to Official Documents. COE Directorate General of Human Rights. Strasbourg, France, February 2002 http://www.coe.int/T/E/Human_rights/rec(2002)2_eng.pdf The Council of Europe, founded in 1949, is the oldest organisation working for European integration. It is an international organisation with legal personality recognised under public international law and has observer status with the United Nations. The seat of the Council of Europe is in Strasbourg in France. (The Council of Europe is not to be confused with the Council of the European Union, which is the EU's legislature, or the European Council, which is the council of all EU heads of state. These belong to the European Union, which is separate from the Council of Europe, although they share the same European flag and anthem since the 1980s because they also work for European integration.)

The Johannesburg Declaration of Principles on National Security, Freedom of

Expression, and Access to Information • ‘These Principles were adopted on 1 October 1995 by a group of experts in international law, national security, and human rights convened by ARTICLE 19, the International Centre Against Censorship, in collaboration with the Centre for Applied Legal Studies of the University of the Witwatersrand, in Johannesburg. The Principles are based on international and regional law and standards relating to the protection of human rights, evolving state practice (as reflected, inter alia, in judgments of national courts), and the general principles of law recognized by the community of nations.’ http://www.article19.org/pdfs/standards/joburgprinciples.pdf

National Security Archive • The World’s Right to Know, by Archive director Thomas Blanton. Foreign Policy journal, July/August 2002 http://www.freedominfo.org/documents/rtk-english.pdf

Sponsor and secretariat for the invaluable freedominfo.org website, at George Washington University. A non-profit research and archival institution located within The George Washington University in Washington, D.C., it was founded in 1985 by Scott Armstrong and Thomas Blanton, and archives and publishes declassified U.S. government files concerning selected topics of American foreign policy.

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Open Society Justice Initiative • (1) Open Society Justice Initiative, Ten Principles on the Right to Know, 2006. http://www.ifap.ru/library/book115.pdf • (2) Open Society Justice Initiative, Access to Information, Monitoring Tool Overview: International Law and Standards on Access to Information. New York, 2004. http://www.justiceinitiative.org/db/resource2?res_id=102207 The Open Society Justice Initiative combines litigation, legal advocacy, technical assistance, and the dissemination of knowledge to secure advances in the following priority areas: national criminal justice, international justice, freedom of information and expression, and equality and citizenship. It has offices in Abuja, Budapest and New York.

Organization for Security and Co-operation in Europe (OSCE) • (1) Access to information by the media in the OSCE region: trends and recommendations. Summary of preliminary results of the survey.With recommendations on FOI laws. Miklós Haraszti, Representative on Freedom of the Media. Vienna, 2007 http://www.osce.org/documents/rfm/2007/05/24250_en.pdf • (2) OSCE with Privacy International, Legal Protections and Barriers on the Right to Information, State Secrets and Protection of Sources in OSCE Participating States, by David Banisar. London, May 2007 http://www.privacyinternational.org/foi/OSCE-access-analysis.pdf The OSCE is the world's largest regional security organization whose 56 participating States span the geographical area from Vancouver to Vladivostok. And ad hoc organization under the UN Charter, it serves as a forum for political dialogue, and its stated aim is to secure stability in the region, based on democratic practices.

Transparency International

• Using the Right to Information as an Anti-Corruption Tool. With Tips for the Design of Access to Information Laws. 2006 http://www.ifap.ru/library/book115.pdf Transparency International (TI), founded in 1993, is a leading international non-governmental organization addressing corruption. It is widely known for producing its annual Corruptions Perceptions Index, a comparative listing of corruption worldwide. TI has some 100 national chapters, with an international secretariat in Berlin.

United Nations Development Agency (UNDP)

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• (1) Summary of the presentation at the Regional Workshop on Media and Accountability, Kuala Lumpur, 27 May 2006. By Patrick Keuleers, Regional advisor, UNDP Regional Centre in Bangkok http://regionalcentrebangkok.undp.or.th/practices/governance/documents/Speech_Regional_MediaandAccountability_Workshop.pdf • (2) UNDP Democratic Governance Group, Right to Information Practical Guidance Note, July 2004. Document developed by Andrew Puddephatt (Executive Director, Article 19) in collaboration with the Oslo Governance Centre, a unit of UNDP’s Democratic Governance Group http://www.undp.org/governance/docs/A2I_Guides_RighttoInformation.pdf • (3) International Mechanisms for Promoting Freedom of Expression. Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, the OAS Special Rapporteur on Freedom of Expression and the ACHPR (African Commission on Human and Peoples’ Rights) Special Rapporteur on Freedom of Expression. December 2006 http://www.article19.org/pdfs/standards/four-mandates-dec-2006.pdf The United Nations was founded in 1945 to replace the League of Nations, in the hope that it would intervene in conflicts between nations and thereby avoid war. There are now 192 United Nations member states, including almost every recognized independent state.

World Bank

• Legislation on freedom of information: trends and standards. Washington DC: PREM Notes journal, No. 93, October 2004. http://www1.worldbank.org/prem/PREMNotes/premnote93.pdf The World Bank, a part of the World Bank Group (WBG), is a bank that makes loans to developing countries for development programs with the stated goal of reducing poverty. The World Bank was formally established on December 27, 1945, following the ratification of the Bretton Woods agreement.

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FOI Policies and Best Practice Recommendations from

Canadian Non-Governmental Organizations

and other sources • Bill C-39, An Act to better assure the Public’s Rights to Freedom of Access to Public

Documents and Information about Government Administration. (Not online) 1965

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In April 1965, journalist and NDP member of parliament Barry Mather (1909-1982), of British Columbia, introduced the first freedom of information bill (C-39) as a private member’s one page bill. It died on the order paper, yet in each parliamentary session between 1968 and his retirement in 1974, he reintroduced identical legislation. Four times it reached second reading, but went no further. • Bill C-225, An Act respecting the right of the public to information concerning the

public business. (Not online) ‘Sec. 1. This Act may be cited as the Right to Information Act.’ 1974 Gerald William ‘Ged’ Baldwin (1907–1991), a lawyer and MP from Alberta, was a Conservative party politician who was known as the ‘Father and Grandfather’ of the Access to Information Act. In October 1974, Baldwin introduced a private member’s bill, Bill C-225. Though it eventually died on the order paper, it received extensive study by the Standing Joint Committee on Regulations and Other Statutory Instruments. He organized a group of FOI advocates and MPs, called ACCESS. • Open and Shut: Enhancing the Right to Know and the Right to Privacy. Report of the MPs' Standing Committee on Justice and Solicitor General on the Review of the Access to Information Act and the Privacy Act. Ottawa, 1987 (Not online) In March 1987 the committee released its review. Later the same year, the government released its response, Access and Privacy: The Steps Ahead. Subsequently most of the administrative recommendations of the committee report were implemented, but none of the legislative recommendations. • The Access to Information Act: A Critical Review. Ottawa, 1994 http://www.infocom.gc.ca/publications/default-e.asp This report was prepared for the Information Commissioner of Canada by Sysnovators Ltd. of Ottawa. The opinions and recommendations it presents are those of the authors and do not represent the official position of the Information Commissioner of Canada. • Toward a Better Law: Ten Years and Counting. John Grace, Information Commissioner. Recommendations for ATIA reform, in Commissioner’s 1993-94 Annual Report. Ottawa, 1994 http://www.infocom.gc.ca/reports/pdf/OIC93_4E.PDF John Grace, a PH.D. from the University of Michigan, was Canada’s first Privacy Commissioner being before being appointed Information Commissioner (succeeding Inger Hansen), serving from 1990 to 1998. After teaching at the University of Michigan, he was a journalist for 22 years, as an editorialist and editor for the Ottawa Journal. • Blueprint for Reform. John Reid, Information Commissioner. Recommendations for ATIA reform, in Commissioner’s 2000-01 Annual Report. Ottawa, 2001 http://www.infocom.gc.ca/reports/2000-2001-e.asp

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John Reid was Information Commissioner of Canada from 1998 to 2006. (He was then succeeded by Robert Marleau). Mr. Reid was a Liberal MP from 1965 to 1984, and Minister of State for for federal-provincial relations in 1978-79. He worked on issues such as improving the access of MPs to government records, and later represented Canada on the OSCE’s mission to Bosnia and Herzegovina. • A Call for Openness. Report of MPs’ Committee on Access to Information, chaired by Liberal MP John Bryden. Ottawa, 2001 (Not online) In 2000, backbench Liberal MP John Bryden, formed a special all-party committee to discuss needed reforms to the ATIA, and it produced a report. Because he was acting independently of the Liberal government, it explicitly disapproved of Mr. Bryden’s committee and forbade civil servants to speak to it. In June 2000, a private member’s bill was introduced by Mr. Bryden to overhaul the Act was defeated at second reading by a vote of 178 to 44. • From Secrecy to Openness: How to Strengthen Canada's Access to Information

System. Report by Open Government Canada. Toronto, 2001 http://dwatch.ca/camp/Open_Government_Report.pdf Open Government Canada (OGC) was initiated by the Canadian Association of Journalists (CAJ), and designed as a national grassroots coalition that brought together existing FOI organizations across the country, media lawyers, librarians, historians, non-profit groups and individual users. It held a founding conference in Toronto in 2000, and was active with a website and listserve, but became inactive several years later. • Access to Information: Making it Work for Canadians. Report of the Access to Information Review Task Force. Ottawa, 2002. Appended with 29 research reports. http://www.atirtf-geai.gc.ca/report2002-e.html In 2000, the Justice Minister and Treasury Board President announced the establishment of the Access to Information Review Task Force, with a mandate to review both the legislative and administrative issues relative to access to information. The Task Force was widely criticized for the secrecy of its processes and meetings. • Bill C-201 An Act to amend the Access to Information Act and to make amendments

to other Acts. Introduced by NDP Member of Parliament Pat Martin, 2004 http://www2.parl.gc.ca/HousePublications/Publication.aspx?pub=bill&doc=C-201&parl=38&ses=1&language=E In 2003, MP John Bryden attempted to initiate a comprehensive overhaul of the Act through a private member’s bill, Bill C-462, which died on the order paper with the dissolution of the 37th Parliament in May 2004. A similar bill was introduced by MP Pat Martin in October 2004 as Bill C-201. The bills’ provisions are virtually identical.

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• A Comprehensive Framework for Access to Information Reform: A Discussion Paper Justice Department of Canada, Ottawa, 2005 http://www.justice.gc.ca/en/dept/pub/ati/ In April 2005, Liberal Justice Minister Irwin Cotler introduced this discussion paper, asking the House of Commons Standing Committee on Access to Information, Privacy and Ethics for input on a range of policy questions before the introduction of legislation. • Access to Information Act - Proposed Changes and Notes. By John Reid, Information Commissioner of Canada, Ottawa, 2005 http://www.infocom.gc.ca/specialreports/2005reform-e.asp This draft bill of Mr. Reid, the Open Government Act, was tabled at the House of Commons Standing Committee on Access to Information, Privacy and Ethics on October 25, 2005, at the request of the Committee. Most of this draft bill was endorsed by the ETHI Committee, who advised that it be passed into law. Also see Mr. Reid's 2005 special report on proposed changes to the ATIA, at the same website.

• In Pursuit of Meaningful Access to Information Reform: Proposals to Strengthen

Canadian Democracy. The Canadian Newspaper Association (CNA), Toronto, 2005 http://www.cna-acj.ca/Client/CNA/cna.nsf/web/PolicyFOI?OpenDocument The Canadian Newspaper Association (CNA) is a non-profit organization, representing Canadian daily newspapers (English and French) with daily circulations ranging from 3,500 to more than 500,000. The CNA has pressed for ATIA improvements since 1997. • Stand Up For Canada. 2006 federal election platform statement of the Conservative Party of Canada, led by Stephen Harper, now Prime Minister http://www.conservative.ca/media/20060113-Platform.pdf The Conservative Party of Canada, colloquially known as the ‘Tories,’ is a conservative political party in Canada, formed by the merger of the Canadian Alliance and the Progressive Conservative Party of Canada in December 2003. The party has formed the Government of Canada since February 6, 2006. • Restoring Accountability. From the Final Report of the Commission of Inquiry into the Sponsorship Program and Advertising Activities, by Justice John H. Gomery. Restoring Accountability: Phase 2 Report, Recommendations. Ottawa, 2006 http://epe.lac-bac.gc.ca/100/206/301/pco-bcp/commissions/sponsorship-ef/06-02-10/www.gomery.ca/en/phase2report/recommendations/cispaa_report_chapter10.pdf The Gomery Commission was a federal Canadian Royal Commission headed by retired Justice John Gomery for the purpose of investigating 'the sponsorship scandal,' which involved allegations of corruption within the Canadian government in regards to the awarding of advertising contracts.

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• Strengthening the Access to Information Act. A Discussion of Ideas Intrinsic to the Reform of the Access to Information Act. Government of Canada discussion paper, Ottawa, 2006 http://canada.justice.gc.ca/en/dept/pub/atia/index.html ‘The Government was in a position to introduce some reforms as part of the proposed Federal Accountability Act, as sufficient consultations have been undertaken with the affected entities to allow the development of reforms. The remaining proposals, however, require further consultation, analysis and development before additional reforms can be drafted and introduced.’ – Justice Department of Canada • A Chance for Transparency: The Federal Accountability Act and Public Access to Information. Submission to the House committee considering Bill C-2, The Federal Accountability Act. The BC Freedom of Information and Privacy Association (FIPA), Vancouver, 2006 http://fipa.bc.ca/home/news/145 FIPA is a non-profit society established in 1991 for the purpose of advancing freedom of information, open and accountable government, and privacy rights in Canada. It serves a wide variety of individuals and organizations through programs of public education, legal aid, research, public interest advocacy and law reform. • Sign on to the 7 Recommendations to Strengthen Canada's Access to Government

Information System. Democracy Watch, and Open Government Coalition. Ottawa, 2007 http://www.dwatch.ca/camp/accessdir.html Democracy Watch in Canada, established in 1993 and headed by Duff Conacher, is a non-profit, non-partisan, non-governmental organization. Democracy Watch's Open Government Coalition has been formed to campaign for changes to Canada's ATIA. The Coalition is composed of the Canadian Labour Congress, Democracy Education Network, Democracy Watch and Forest Ethics.

• Bill C-556, Act to amend the Access to Information Act (improved access). Introduced by Bloc Quebecois Member of Parliament Carole Lavallée, 1st reading, June 2008 http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=3525397&Language=e&Mode=1&File=27#1 On the key points, the Bill C-556 text is identical to Bill C-554 of NDP MP Pat Martin, introduced at the same time. These bills are updated versions of the Open Government Act, a complete ATIA reform bill drafted by former Information Commissioner John Reid at the request of the House Access to Information, Privacy and Ethics Committee; the Committee unanimously endorsed the Bill, as did Justice John Gomery, and the Conservative Party then seeking power.

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International Organizations, FOI Codes See IFTI Watch website of Toby McIntosh - http://www.freedominfo.org/ifti/un.htm In 1990, no inter-governmental organisation had recognised the right to information, yet now all of the multilateral development banks and a number of other international financial institutions have adopted information disclosure policies.

African Development Bank • African Development Bank Policy on Disclosure to Information. 2004 www.afdb.org/pls/portal/url/ITEM/18605BE4282F0594E040C00A0C3D1115 (Policy text) / http://www.freedominfo.org/ifti/afdb.htm (News) The African Development Bank (ADB) is a development bank established in 1964 with the intention of promoting economic and social development in Africa. Forty years to date, the ADB Group has financed 2,885 operations, for a total of $47.5 billion. The Bank in 2004 published a new disclosure policy going further than other international financial institutions in the release of draft documents.

Asian Development Bank • Public Communications Policy of the Asian Development Bank. 2005. http://www.adb.org/Documents/Policies/PCP/default.asp?p=disclose (Policy text) http://freedominfo.org/ifti/adb.htm (News) The Asian Development Bank (ADB) is a regional development bank established in 1966 to promote economic and social development in Asian and Pacific countries through loans and technical assistance. It is a multilateral development financial institution owned by 67 members, 48 from the region and 19 from other parts of the globe. ADB's vision is a region free of poverty.

European Bank for Reconstruction and Development

• Public Information Policy. 2008. http://www.ebrd.com/about/policies/pip/pip.pdf (Policy text) / http://www.freedominfo.org/ifti/ebrd.htm (News) Founded in 1991, the European Bank for Reconstruction and Development (EBRD) uses the tools of investment to help build market economies and democracies in 27 countries from central Europe to central Asia. The EBRD is owned by 61 countries and two intergovernmental institutions. Despite its public sector shareholders, it invests mainly in private enterprises, usually together with commercial partners.

European Parliament

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• Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents. http://legacywebmail.telus.net/horde/imp/mailbox.php?actionID=105&mailbox=INBOX&1=1 (Regulation text) / http://www.europarl.europa.eu/ (Parliament website) The European Parliament (Europarl or EP) is the only directly elected parliamentary institution of the European Union (EU). Together with the Council of the European Union (the Council), it forms the bicameral legislative branch of the Union's institutions and has been described as one of the most powerful legislatures in the world. The Parliament and Council form the highest legislative body within the Union.

European Investment Bank

• Public Disclosure Policy. 2007. http://www.eib.org/about/publications/public-disclosure-policy.htm.en (Policy text) / http://freedominfo.org/ifti/eib.htm (News) The European Investment Bank is the European Union's financing institution and was established in 1958 under the Treaty of Rome to provide financing for capital investment furthering EU policy objectives, in particular regional development, Trans-European Networks of transport, telecommunications and energy, research, development and innovation, environmental improvement and protection, health and education. Contrary to one implied meaning of the bank's name, the EIB is not an investment bank.

International Monetary Fund (IMF)

• Transparency Policy Decision. 2007. http://www.ifitransparency.org/doc/Transparency_IMF_GTI.pdf (A critique) http://freedominfo.org/ifti/imf.htm (News) The International Monetary Fund (IMF) is an international organization of 185 nations that oversees the global financial system by following the macroeconomic policies of its member countries, in particular those with an impact on exchange rates and the balance of payments. It also offers financial and technical assistance to its members, making it an international lender of last resort.

Inter-American Development Bank

• Disclosure of Information Policy. 2003. http://idbdocs.iadb.org/wsdocs/getdocument.aspx?docnum=781675 (Policy text) http://freedominfo.org/ifti/iadb.htm (News) The Inter-American Development Bank was established and headquartered in Washington, D.C., in 1959 to support Latin American and Caribbean economic and social development and regional integration by lending mainly to governments and government agencies, including State corporations.

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United Nations Development Programme, UNDP

• Information Disclosure Policy. 2008. http://www.undp.org/idp/ (Policy text) http://www.freedominfo.org/ifti/un.htm (News) In 1997, the United Nations Development Programme (UNDP) adopted a Public Information Disclosure Policy, on the basis that information is key to sustainable human development and also to UNDP accountability. The Policy enumerates specific documents that shall be made available to the public and provides for a general presumption in favour of disclosure, subject to a number of exceptions.

World Bank

• The World Bank Policy on Disclosure of Information. 2002. http://www1.worldbank.org/operations/disclosure/documents/disclosurepolicy.pdf (Policy text) / http://www.freedominfo.org/ifti/worldbank.htm (News) The World Bank, a part of the World Bank Group (WBG), is a bank that makes loans to developing countries for development programs with the stated goal of reducing poverty. The World Bank was formally established on December 27, 1945, following the ratification of the Bretton Woods agreement.

World Trade Organization (WTO)

• Procedures for the Circulation and Derestriction of WTO Documents. 2002. http://gatt.stanford.edu/page/about/derestriction;jsessionid=8D59FFE87AEC4B9889DBC0D6B80782FA (Texts of Derestriction Policies of the GATT and WTO, pre and post 2002) / http://www.freedominfo.org/ifti/wto.htm (News) The World Trade Organization (WTO) is an international organization designed to supervise and liberalize international trade. The WTO came into being on 1 January 1995, and is the successor to the General Agreement on Tariffs and Trade (GATT), which was created in 1947, and continued to operate for almost five decades as a de facto international organization. It deals with the rules of trade between nations at a near-global level; it is responsible for negotiating and implementing new trade agreements.

Aarhus Convention

• Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. 1988. http://www.unece.org/env/pp/documents/cep43e.pdf The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters was signed on June 25, 1998 in the Danish city of Aarhus. It grants the public rights regarding access to information, public participation and access to justice, in governmental decision-making processes on

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matters concerning the local, national and transboundary environment. (It is discussed at length in Chapter 14 of this report, Fallen Behind.)

Council of Europe

• European Treaty on Access to Official Documents. 2007. http://www.aip-bg.org/documents/coe_convention_eng.htm / http://www.freedominfo.org/news/20071107.htm (News) The Council of Europe, founded in 1949, is the oldest organisation working for European integration. It is an international organisation with legal personality recognised under public international law and has observer status with the United Nations. The seat of the Council of Europe is in Strasbourg in France. The Council of Europe maintains offices in Paris and Brussels as well as in the capitals of several other member states.

Global Transparency Initiative

• Transparency Charter for International Financial Institutions: Claiming our Right to Know. 2006. http://www.ifitransparency.org/doc/charter_en.pdf (Charter text) http://www.freedominfo.org/ifti/20080516b.htm (News) A civil society movement, the Global Transparency Initiative (GTI) has the Transparency Charter, setting out the GTI’s demands for international financial institutional openness. ‘Over time, many IFIs are accepting at least some of the key Charter standards and gradually amending their policies to bring them more closely into line with these standards.’ - Toby Mendel, 2008

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SELECT BIBLIOGRAPHY

Canada Access to Information Act, C. A-1. Ottawa, 1982, amendments came into force in 2007 http://www.infocom.gc.ca/acts/pdfs/accessact.pdf The Access to Information Act and Cabinet confidences: a discussion of new approaches. A study prepared by RPG Information Servicses Inc. for the Information Commissioner of Canada. Ottawa, 1996. http://www.infocom.gc.ca/publications/pdf_en/CABCONF.PDF British Columbia Freedom of Information and Privacy Association (FIPA), A Chance for Transparency: The Federal Accountability Act and Public Access to Information. Vancouver, May 2006 http://fipa.bc.ca/home/news/145 Canadian Foundation for the Americas (FOCAL), Report on Access to Information in Canada. Civil Society Follow-up of the Quebec City Summit of the Americas Plan of Action. Ottawa, Canada. August 2004 http://www.focal.ca/pdf/Canada_access_information.pdf Canadian Newspaper Association, In Pursuit of Meaningful Access to Information Reform: Proposals to Strengthen Canadian Democracy, Toronto: CNA, 2004 http://www.cna-acj.ca Conservative Party of Canada federal election platform, Stand Up For Canada. 2006 http://www.conservative.ca/media/20060113-Platform.pdf Crawford, Michael, The Journalist’s Legal Guide. 4th ed. Toronto: Carswell, 2002 Democracy Watch, and the Open Government Coalition, Sign on to the 7 Recommendations to Strengthen Canada's Access to Government Information System. Ottawa, 2007 http://www.dwatch.ca/camp/accessdir.html Douglas, Kristen, The Access to Information Act and Recent Proposals for Reform. Ottawa: Library of Parliament, Parliamentary Information and Research Service, Law and Government Division, 2006 http://www.parl.gc.ca/information/library/PRBpubs/prb0555-e.html Douglas, Kristen, Access to Information Legislation in Canada and Four Other Countries. Ottawa: Library of Parliament, Parliamentary Information and Research Service, Law and Government Division, 2006 http://www.parl.gc.ca/information/library/PRBpubs/prb0608-e.htm Drapeau, Colonel Michel W., and Marc-Aurele Racicot, Federal Access to Information and Privacy Legislation, Annotated 2008. Toronto: Thomson Carswell, 2007

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Duplessis, Yvon, and Jean Hétu, Accès à l’Information, Loi sure l’accès aux documents des organismes publics et sur la protection des renseignements personnels, Indexée, annotée et commentée, Québec: Les Éditions Yvon Blais Inc, 1991

Fortier, Louis, Législation canadienne sur l’accès à l’information / Canadian Legislation on Access to Information. Toronto: Carswell, 1996

Grace, John, Information Commissioner of Canada. Toward a Better Law: Ten Years and Counting. Recommendations for ATI Act reform, in 1993-94 Annual Report. Ottawa http://www.infocom.gc.ca/reports/pdf/OIC93_4E.PDF

Hazell, Robert, Freedom of Information in Australia, Canada and New Zealand - Final Report to the Cabinet Office on the Operation of the Australian Freedom of Information Act 1982, Canadian Access to Information and Privacy Acts 1982 and the New Zealand Official Information Act 1982. London: Home Office, 1987

Hazell, Robert, Freedom of Information in Canada - Report to the Cabinet Office (M P O) on the Operation of the Access to Information and Privacy Legislation in Canada. Ottawa, Treasury Board of Canada, 1987

Johansen, David, Federal and Provincial Access to Information Legislation: An Overview. Parliamentary Information and Research Division. Ottawa, 1997, revised May 2005 http://www.parl.gc.ca/information/library/PRBpubs/bp383-e.pdf Hofley, Randall, Craig Collins-Williams, Stikeman Elliott LLP, A Thematic Comparison of Access Legislation Across Canadian and International Jurisdictions. A report for the federal Information Commissioner’s office, Ottawa, May 2008 http://www.ppforum.ca/en/events/details.asp?id=259&theme=all&year=u2008 Justice Department of Canada, Annotated Access to Information Act, Information Law and Privacy Section. Ottawa: Queen’s Printer of Canada, September 1999 http://www.justice.gc.ca/ilap_e/Products/Annotated/ATIA/atia_annotated.htm

Justice Department of Canada, A Comprehensive Framework for Access to Information Reform: A Discussion Paper. Ottawa, April 2005. http://www.justice.gc.ca/en/dept/pub/ati/index.html

Justice Department of Canada, The Steps Ahead. The government's respsonse to the report of the Standing Committee on Justice and Solicitor General. Ottawa, 1987

Justice Department of Canada, Strengthening the Access to Information Act, a Discussion of Ideas Intrinsic to the Reform of the ATIA. Ottawa, 2006 http://www.justice.gc.ca/en/dept/pub/atia/index.html

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Gomery, Justice John H., Final Report of the Commission of Inquiry into the Sponsorship Program and Advertising Activities. Restoring Accountability: Phase 2 Report, Recommendations. Ottawa: Minister of Public Works and Government Service, 2006. http://epe.lac-bac.gc.ca/100/206/301/pco-bcp/commissions/sponsorship-ef/06-02-10/www.gomery.ca/en/phase2report/recommendations/cispaa_report_chapter10.pdf

McNairn, Colin, and Christopher Woodbury, Government Information: Access and Privacy, with looseleaf supplements. Toronto: Carswell, 2007

Mitchell, Heather, and Murray Rankin, Using the Access to Information Act. Vancouver: International Self-Counsel Press, Ltd., 1984

MPs’ Committee on Access to Information, A Call for Openness, Ottawa (November 2001). Chaired by John Bryden, MP.

Office of the Information Commissioner of Canada, Open Government Act: Notes, Sources and References. Ottawa, January 2008 http://www.infocom.gc.ca/specialreports/2005reform-e.asp Open Government Canada (OCG), From Secrecy to Openness: How to Strengthen Canada's Access to Information System. Toronto, July 2001 http://dwatch.ca/camp/Open_Government_Report.pdf Québec Commission d’Accès à l’Information, Reforming Access to Information: Choosing Transparency, 2002 Rankin, Murray. Freedom of Information in Canada: Will the Doors Stay Shut? Ottawa: Canadian Bar Association, 1977 Rankin, Murray, The Access to Information Act 25 Years Later: Toward a New Generation of Access Rights in Canada. A report for the federal Information Commissioner’s office, Ottawa, June 2008 http://www.ppforum.ca/en/events/details.asp?id=259&theme=all&year=u2008 Reid, John, Information Commissioner of Canada. Blueprint for Reform. Recommendations for ATI Act reform, in 2000-01 Annual Report. Ottawa http://www.infocom.gc.ca/reports/2000-2001-e.asp Reid, John, Information Commissioner of Canada, Access to Information Act - Proposed Changes and Notes http://www.infocom.gc.ca/specialreports/2005reform-e.asp Ottawa, 2005

Roberts, Alasdair, and Jonathan DeWolfe & Christopher Stack, An Evidence-Based Approach to Access Reform, School of Policy Studies Working Paper 22, Queen’s University, Ontario, 2001 http://www.aroberts.us/documents/papers/sps_wp_22.pdf

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Roberts, Alasdair, Limited Access: Assessing the Health of Canada's Freedom of Information Laws, School of Policy Studies, Queen's University, Ontario, 1998.

Roberts, Alasdair, Two Challenges in Administration of the Access to Information Act. A report for the Sponsorship Inquiry, 2006 http://www.aroberts.us/documents/chapters/Roberts_Gomery_2006.pdf

Roberts, Hon. John, Legislation on Public Access to Government Documents - The Green Paper. Ottawa: Minister of Supply and Services Canada, 1977

Rolfe, Chris, and Rodney Wilts, Whistleblower Protection: Strategies for B.C. West Coast Environmental Law, Vancouver, 2002 http://www.wcel.org/wcelpub/2002/13961.pdf Rowat, Donald, ed., The Making of the Federal Access Act: A case study of policy-making in Canada. Ottawa: Carleton University Press, 1985

RPG Information Services Inc., The Access to Information Act and Cabinet Confidences - A Discussion of New Approaches (Ottawa: Minister of Public Works and Government Services Canada, 1996). Report prepared for the Information Commissioner of Canada. See: http://www.infocom.gc.ca/publications/default-e.asp

Hugh Segal, The Critical Role of Information in a Democracy – A New Approach to Public Disclosure. Access to Government and Corporate Information Conference, University of Winnipeg, May 2002.

Standing Committee on Justice and Solicitor General on the Review of the Access to Information Act and the Privacy Act, report, Open and Shut: Enhancing the Right to Know and the Right to Privacy. Ottawa: Queen’s Printer of Canada, 1987

Snell, Rick, Administrative Compliance and Freedom of Information in Three Jurisdictions: Australia, Canada and New Zealand. Paper presented at Conference on Freedom of Information - One Year On, St. Patrick’s Hall, Dublin, Ireland, April 1999. See: http://www.ucc.ie/ucc/depts/law/foi/conference/snellframes99.html

Sysnovators Ltd., The Access To Information Act: A Critical Review (Ottawa: Minister of Public Works and Government Services, 1994). Report prepared for the Information Commissioner of Canada. See: http://www.infocom.gc.ca/publications/default-e.asp

Treasury Board Secretariat, Access to Information and Privacy Coordinators: Their Status and Role. Ottawa, 1988 Treasury Board Secretariat and Justice Department of Canada, Access to Information: Making it Work for Canadians; Report of the Access to Information Review Task Force. Ottawa, 2002 http://www.atirtf-geai.gc.ca/report2002-e.html Appended with 29 research reports.

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Treasury Board Secretariat, Treasury Board Manual - Access to Information. Ottawa: Queen’s Printer of Canada, 1993 http://www.tbs-sct.gc.ca/Pubs_pol/gospubs/tbm_121/siglist_e.html

Global freedom of information resources African Union and African Commission on Human and Peoples’ Rights, Declaration of Principles of Freedom of Expression in Africa. IV. Freedom of Information. Gambia, October 2002. http://www.achpr.org/english/declarations/declaration_freedom_exp_en.html Arab League, Council of the League of Arab States, Arab Charter on Human Rights, May 23, 2004 http://www1.umn.edu/humanrts/instree/arabcharter2.html Banisar, David, Freedom of Information Around the World 2006: A Global Survey of Access to Government Information Laws. Privacy International, 2006 http://www.freedominfo.org/documents/global_survey2006.pdf

Blanton, Thomas, director, National Security Archive at George Washington University, The World’s Right to Know. Foreign Policy journal, July/August 2002 http://www.freedominfo.org/documents/rtk-english.pdf Blanton, Thomas, The Problem of Secrecy and the Opportunity for Openness in International Institutions. Working Paper Series. Initiative for Policy Dialogue. Columbia University. May 2003 http://www0.gsb.columbia.edu/ipd/programs/item.cfm?prid=25&iyid=13&itid=499

Bunyan,Tony, Secrecy and Openness in the European Union: the Ongoing Struggle for Freedom of Information. Statewatch, September 2002 http://www.statewatch.org/secret/freeinfo/synopsis.htm

Calland, Richard, and Alison Tilley, The Right to Know, The Right to Live. Capetown, South Africa: Open Democracy Advice Centre, 2002 The Carter Center, Access to Information, a Key to Democracy. Edited by Laura Neuman (Chapter: Access to Information: How is it Useful and How is it Used? Key Principles for a Useable and User-Friendly Access to Information Law. By Dr. Richard Calland), Atlanta, Georgia, November 2002 http://www.cartercenter.org/documents/1272.pdf The Carter Center, The Promotion of Democracy Through Access to Information: Bolivia.. Atlanta, Georgia. May 2004 http://www.cartercenter.org/documents/2012.pdf

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Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. Aarhus, Denmark, June 1998. (“The Aarhus Convention”) http://www.unece.org/env/pp/documents/cep43e.pdf Council of Europe Committee of Ministers, Recommendations on Access to Official Documents. Directorate General of Human Rights. Strasbourg, France, February 2002. http://www.coe.int/T/E/Human_rights/rec(2002)2_eng.pdf European Union, Directive 2002/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information. http://europa.eu/scadplus/leg/en/lvb/l28091.htm Frankel, Maurice, Freedom of Information and Corruption, Paper for the Global Forum on fighting corruption and safeguarding integrity. UK Campaign for Freedom of Information, London, May 2001 http://www.cfoi.org.uk/pdf/corruptionmf.pdf

Freedom of Information journal. Edited by Marcus Turle, London. 6 issues annually.

Hallo, Ralph E., Public Access to Environmental Information. Netherlands Society for Nature and Environment. Report for the European Environment Agency (EEA), 1997 http://reports.eea.europa.eu/92-9167-020-0/en/page001.html

Human Rights Education Associates (HREA), Study Guides: Freedom of Expression. Amsterdam, 2007 http://www.hrea.org/learn/guides/freedom-of-expression.html

Inter-American Dialogue, Access to Information in the Americas. Conference on Access to Information in the Americas, Buenos Aires, Argentina. Inter-American Dialogue. December 2002. http://www.thedialogue.org/PublicationFiles/Access%20Report.pdf

Kaufmann, Daniel, and Ana Bellver, Transplanting Transparency: Initial Empirics and Policy Applications. World Bank Institute, Washington DC, August 2005. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=808664 (‘Errors and views are solely the authors’ and do not necessarily reflect the official position of the institution’)

Kaufmann, Daniel, Back to Basics - Ten Myths About Governance and Corruption. International Monetary Fund, Finance and Development magazine. Washington DC. September 2005 http://www.imf.org/external/pubs/ft/fandd/2005/09/basics.htm

Kranenborg, H., and W. Voermans, Access to Information in the European Union - A Comparative Analysis of EC and Member State Legislation. Europa Law Publishing, June 2004

McDonald, A., and G. Terrill (eds) Open Government: Freedom of Information and Privacy. London: Macmillan Press Ltd, 1998

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Open Society Justice Initiative, Access to Information, Monitoring Tool Overview: International Law and Standards on Access to Information. New York, 2004. http://www.justiceinitiative.org/db/resource2?res_id=102207 Open Society Justice Initiative, Transparency & Silence: A Survey of Access to Information Laws and Practices in 14 Countries. June 2006. http://www.justiceinitiative.org/db/resource2?res_id=103424 Organization of American States (OAS), Report of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights Pursuant to Resolution Ag/Res. 1932. (XXXIII-O/03).Washington DC, 2003 http://www.transparency.org/global_priorities/access_information/readings_access Organization for Security and Co-operation in Europe (OSCE), 21st Century Challenges for the Media in Central Asia: Dealing with Libel and Freedom of Information. OSCE Representative on Freedom of the Media and The Centre in Dushanbe, Sixth Central Asian Media Conference, Dushanbe, Tajikistan, 2004. http://www.osce.org/publications/rfm/2005/07/15670_430_en.pdf Organization for Security and Co-operation in Europe (OSCE), Access to information by the media in the OSCE region: trends and recommendations. Summary of preliminary results of the survey. Miklós Haraszti, Representative on Freedom of the Media. Vienna, April 2007. http://www.osce.org/documents/rfm/2007/05/24250_en.pdf Organization for Security and Co-operation in Europe (OSCE), Access to information by the media in the OSCE region: Country Reports. The Office of the Representative on Freedom of the Media, Vienna, April 2007. http://www.fas.org/sgp/library/osce-reports.pdf Oslo Governance Centre, UNDP and the Right to Information. Seminar Report. Oslo, Norway. May 2006. http://www.undp.org/oslocentre/docs06/Seminar%20Report%20-%20UNDP%20and%20the%20Right%20to%20Information.pdf Privacy International, Legal Protections and Barriers on the Right to Information, State Secrets and Protection of Sources in OSCE Participating States. By David Banisar. London, May 2007. The report was commissioned by the Representative of the Freedom of the Media for the Organisation for Security and Cooperation in Europe with additional support from the Network Media Programme of the Open Society Foundation. The views given in this report do not necessarily represent those of the OSCE. http://www.privacyinternational.org/foi/OSCE-access-analysis.pdf Roberts, Alasdair, The Struggle for Open Government. Paper prepared for the First International Conference on Corruption and Transparency, Institute of Social Research, National Autonomous University of Mexico, March 2006 http://www.aroberts.us/documents/papers/Roberts_NAMU_2006_R2.pdf

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Roberts, Alasdair, Blacked Out: Government Secrecy in the Information Age. New York: Cambridge University Press, 2006 Savintseva, Marina, Access to Information in Russia 2006. An overview of Access to information legislation in Russia, 1996-2005. Access to Information Program Coordinator, Transparency International – Russia. June 2006. http://www.transparency.org.ru/doc/ACCESS_TO_INFORMATION_IN_RUSSIA_2006_01252_6.doc

Snell, Rick, The Kiwi Paradox - A Comparison of Freedom of Information in Australia and New Zealand. (2000) 28:3 Federal Law Review http://pandora.nla.gov.au/tep/11156

Suominen, Kati, Access to Information in Latin America and the Caribbean. Paper for the Inter-American Dialogue conference, Buenos Aires, Argentina, December 2002. http://www.juridicas.unam.mx/publica/librev/rev/comlawj/cont/2/arc/arc2.pdf U.S. Department of Justice Office of Information and Privacy, Freedom of Information Act Guide & Privacy Act – Overview. Washington: U.S. Government Printing Office, May 2000 http://www.usdoj.gov/04foia/04_7.html Vleugels, Roger, Overview of FOIA Countries Worldwide. Pers Consultancy, Utrecht. February 2006. http://www.statewatch.org/news/2006/feb/foia-feb-2006.pdf World Bank, Legislation on freedom of information: trends and standards. Washington DC: PREM Notes journal, No. 93, October 2004 http://www1.worldbank.org/prem/PREMNotes/premnote93.pdf (‘This note was written by Toby Mendel, Article 19. This note series is intended to summarize good practices and key policy findings on PREM-related topics. The views expressed in the notes are those of the authors and do not necessarily reflect those of the World Bank. PREM notes are widely distributed to Bank staff.’)

Article 19

Article 19, The Johannesburg Principles on National Security, Freedom of Expression, and Access to Information. London, 1996 http://www.article19.org/pdfs/standards/joburgprinciples.pdf Article 19, Memorandum on the Proposal for the Adoption of the Law on Free Access to Information of the Former Yugoslav Republic of Macedonia. Global Campaign for Free Expression. London, October 2004 http://www.article19.org/pdfs/analysis/macedonia-freedom-of-information-oct-2004.pdf Mendel, Toby, head of the Law Programme of Article 19, The Public’s Right to Know: Principles of Freedom of Information Legislation. London, June 1999 http://www.article19.org/pdfs/standards/righttoknow.pdf

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Mendel, Toby, Freedom of Information as an Internationally Protected Human Right. London, June 2000. http://www.article19.org/pdfs/publications/foi-as-an-international-right.pdf Mendel, Toby, A Model Freedom of Information Law. London, 2001 http://www.article19.org/pdfs/standards/modelfoilaw.pdf Mendel, Toby, Freedom of Information: A Comparative Legal Survey. Second Edition. Revised and Updated. UNESCO: Paris, 2008 http://portal.unesco.org/ci/en/files/26159/12054862803freedom_information_en.pdf/freedom_information_en.pdf

The Commonwealth Commonwealth, Country Chart: Legal Provisions Protecting the Right to Information. CHRI Report, 2003 http://www.humanrightsinitiative.org/publications/chogm/chogm_2003/country%20chart.pdf Commonwealth Expert Group, Promoting Open Government: Commonwealth Principles and Guidelines on the Right to Know. Meeting on the Right to Know and the Promotion of Democracy and Development. Marlborough House, London, March 1999. http://www.humanrightsinitiative.org/programs/ai/rti/international/cw_standards/commonwealth_expert_grp_on_the_rti_99-03-00.pdf Commonwealth Human Rights Initiative, Open Sesame: Looking for the Right to Information in the Commonwealth. New Delhi, India, 2003 http://www.humanrightsinitiative.org/publications/chogm/chogm_2003/chogm%202003%20report.pdf Commonwealth Parliamentary Association and World Bank Institute, Parliament and Access to Information: Working for Transparent Governance. By Mendel, Toby. Conclusions of the Commonwealth Parliamentary Association -World Bank Institute Study Group on Access to Information, held in partnership with the government of Ghana, July 2004 http://siteresources.worldbank.org/WBI/Resources/Parliament_and_Access_to_Information_with_cover.pdf Commonwealth Parliamentary Association, Recommendations for Transparent Governance. Conclusions of the Commonwealth Parliamentary Association -World Bank Institute Study Group on Access to Information, Ghana, 2004 http://www.humanrightsinitiative.org/programs/ai/rti/international/cw_standards/recommendations_for_transparent_governance.pdf Commonwealth Parliamentary Association, CPA and CHRI, Conclusions from Freedom of Information Workshop for Pacific MPs. September 2005, Nadi Fiji.

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http://www.humanrightsinitiative.org/programs/ai/rti/news/pacific_foi_2005_wshp_conclusions.pdf Commonwealth Parliamentary Association, CPA and CHRI, Report on Freedom of Information Workshop for Pacific MPs. September 2005, Nadi, Fiji. http://www.humanrightsinitiative.org/programs/ai/rti/news/2006/pacific_mps_wkshp_foibooklet_jan06.pdf Commonwealth Secretariat, Model Freedom of Information Bill. London, 2002 http://www.thecommonwealth.org/shared_asp_files/uploadedfiles/%7BAC090445-A8AB-490B-8D4B-F110BD2F3AB1%7D_Freedom%20of%20Information.pdf Commonwealth Secretariat, Principles and Standards for Access to Information, 2007. http://www.humanrightsinitiative.org/programs/ai/rti/international/cw_standards.htm

United Nations International Mechanisms for Promoting Freedom of Expression. Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, the OAS Special Rapporteur on Freedom of Expression and the ACHPR (African Commission on Human and Peoples’ Rights) Special Rapporteur on Freedom of Expression. December 2006. http://www.article19.org/pdfs/standards/four-mandates-dec-2006.pdf United Nations Development Programme, Access to Information: UNDP’s Engagement and a Guide to the Key Actors. December 2003. http://www.undp.org/oslocentre/docsdec03/Full%20guide%20-%20single%20paged.pdf United Nations Development Programme, Right to Information, Practical Guidance Note. Bureau for Development Policy, Democratic Governance Group. July 2004 http://www.undp.org/governance/docs/A2I_Guides_RighttoInformation.pdf United Nations Development Programme (UNDP), A Guide to Measuring the Impact of Right to Information Programmes. Bureau for Development Policy, Democratic Governance Group, April 2006. http://www.undp.org/governance/docs/A2I_guides_righttoinfoimpact.pdf United Nations Development Programme, A Guide to Measuring the Impact of Right to Information Programmes. UNDP Democratic Governance Group. April 2006. http://www.undp.org/governance/docs/A2I_guides_righttoinfoimpact.pdf

Transparency International Pope, Jeremy, Global Corrpution Report 2003. Transparency International, Special Focus: Access to Information, 2003. http://www.transparency.org/publications/gcr/download_gcr/download_gcr_2003

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Mendel, Toby, Global Corrpution Report 2003. Freedom of information legislation: progress, concerns and standards. Transparency International, 2003 http://www.transparency.org/publications/gcr/download_gcr/download_gcr_2003 Transparency International, Global Corruption Report 2003: Special Focus: Access to Information. London: Profile Books, 2003 Transparency International, Using the Right to Information as afn Anti-Corruption Tool. 2006. With Tips for the Design of Access to Information Laws http://www.ifap.ru/library/book115.pdf

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INTERNET SITES

FreedomInfo.org. Largest collection of national FOI laws http://freedominfo.org/ Open Society Justice Initiative. Another useful collection of national FOI laws http://www.justiceinitiative.org/activities/foifoe/foi/foilaws OSCE analysis of each European FOI statute. http://www.fas.org/sgp/library/osce-reports.pdf

========== Privacy International, FOI resources. http://pi.gn.apc.org/issues/foia/_index.html Commonwealth Human Rights Initiative, FOI page. http://www.humanrightsinitiative.org/programs/ai/rti/rti.htm Access Info Europe. http://www.access-info.org/ Alasdair Roberts’ FOI website. http://www.aroberts.us/ Article 19 – Global Campaign for Free Expression. http://www.article19.org/ Canadian Journalists for Free Expression. http://www.cjfe.org/ Freedom of Information Advocates Network. http://www.foiadvocates.net/ Huntingdon College FOI page http://fs.huntingdon.edu/jlewis/FOIA/FOIAlinks.htm Global Accountability Project http://www.oneworldtrust.org/?display=project&pid=10

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International Freedom of Expression Exchange. http://www.ifex.org/ European FOI news page. http://www.wobsite.be/index.php Access Info. http://www.access-info.org/ Transparency International – Canada. http://www.transparency.ca/ WikiFOIA network site. http://wikifoia.pbwiki.com/ Institute for Information Law, Amsterdam http://www.ivir.nl/publications/freedom-of-information.html Access to Information Program, Europe http://www.aip-bg.org/index_eng.htm Global Transparency Initiative http://www.ifitransparency.org/ Public Affairs Centre, Right to Information http://www.pacindia.org/issues/right-to-information IFEX – International FOI exchange http://www.ifex.org/20fr/layout/set/print/layout/set/print/content/view/archivefeatures/20/offset/1675

FOI in the European Union. http://www.statewatch.org/foi/foi.htm

Statewatch, monitor of civil liberties in Europe http://www.statewatch.org/ European FOI portal of Walter Keim http://aitel.hist.no/~walterk/wkeim/foi.htm Democracy Watch, Ottawa www.dwatch.ca Canadian Newspaper Association http://www.cna-acj.ca British Columbia Freedom of Information and Privacy Association (FIPA). www.fipa.bc.ca

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A Note on the Author Stanley L. Tromp is a graduate of the University of British Columbia Political Science department (B.A., 1997), where he completed the course in international law at the UBC Law Faculty; and the Langara College journalism program (Vancouver, 1993). He was named best Langara journalism student by the B.C. Yukon Community Newspaper Association (BCYNA), and won the 1996 essay prize on the Responsible Use of Freedom from St. Mark’s College at UBC. While a reporter for the UBC student newspaper the Ubyssey, his freedom of information act request for the UBC-Coca Cola marketing contract in 1995 prompted a five year legal battle, a successful B.C. Supreme Court appeal, and an influential ruling for disclosure by the B.C. Information and Privacy Commissioner (http://www.oipcbc.org/orders/2001/ Order01-20.html) His FOI requests have been the subject of twelve rulings by the Commissioner since 1996. He has been nominated for a Canadian Association of Journalists award (1997) and a B.C. Newspaper Foundation award (1999), and has been invited to give lectures to UBC and Langara journalism classes on FOI. He 1998 he helped compile a collection of notable stories produced from B.C. FOIPP Act requests, for the book For the Record, published by the B.C. Press Council, at http://www.direct.ca/bcjc/archives.htm For news articles, he has made hundreds of FOI requests, including to foreign countries and American states. His stories have been published in the Globe and Mail, the Vancouver Sun, the Georgia Straight, Vancouver Magazine, the Vancouver Courier, and many other publications. In 2006 he gave oral presentations to the House of Commons and Senate committees in Ottawa considering access to information amendments to the Accountability Act, Bill C-2. He has also made two presentations to British Columbia legislative reviews of the B.C. FOIPP Act. He initiated the FOI caucus of the Canadian Association of Journalists at its annual general meeting in 2004, and was one of the founders of the group B.C. Journalists for Freedom of Information (BCJC) in 1998. He can be reached at stanleytromp@gmail.com _______________

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Reviews of the report Fallen Behind: Canada’s Access to

Information Act in the World Context, 2008

“This report is by far the most comprehensive comparative analysis to date of Canadian and international access to information laws. It is an invaluable resource to those seeking to assess the various Canadian laws in this area, and indeed to anyone interested in comparative research in this area.”

- Toby Mendel, law program director of London-based human rights organization Article 19

“I’ve now had the opportunity to review your report. I want to congratulate you for this initiative, its quality and exhaustive scholarly content. It will stand as a significant reference for all who are interested in the FOI field, but more importantly for those who advocate that Canada should be at the forefront as a governance model for the rest of the world.”

- Robert Marleau, Information Commissioner of Canada

“In the fall, with Right to Know Week, your report might well be an important catalyst as the centerpiece of the week. . . . This is a very good piece of work - I learned a great deal from it myself.”

- John Reid, former Information Commissioner of Canada

"This will be a key reference globally for those fighting for freedom of inform-ation. It's thoroughly researched and very clearly written. This is a significant achievement in the field." - David Loukidelis, British Columbia Information and Privacy Commissioner "Collecting and analyzing information about the burgeoning number of open government laws is extraordinarily hard work. Stanley Tromp has provided a valuable service is showing the emerging international standards, and what Canada must do to regain its status as a leader on transparency." - Alasdair Roberts, Jerome L. Rappaport Professor of Law and Public Service, Suffolk University Law School, Boston USA, author of Blacked Out: Government Secrecy in the Information Age. (New York: Cambridge University Press, 2006)

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