MODERNIZING ACCESS TO INFORMATION IN CANADA: From town crier to global village Panel: The access to information in the international perspective Presentation by Suzanne Legault Assistant Information Commissioner of Canada Mexico City, Mexico November 13 th , 2008

Canada

The Federal Regime

   The    Access to Information Act provides a right of access to information under the control of a federal institution in accordance with the following principles: that government information should be available to the public; that the 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.

It complements and does not replace existing procedures for access to government information; It is not intended to limit access to the type of government information normally available to the general public.

The Office of the Information Commissioner of Canada

We interact with each branch of the state: the executive, the legislative, the judiciary and also with Canadians   Ombudsman:  to ensure that the rights of requesters under the ATIA are respected;   to advocate the benefits of open government; to foster the participation of citizens in the democratic process;  to foster enhanced accountability and transparency in federal institutions; Officer of Parliament;

What we do

  Complaints resolution:    Strong investigative powers (however does not have order-making powers); Resolution of complaints through mediation and persuasion; Statistics:    In 2007-2008, the number of complaints has increased by 81 percent; At the end of 2007-2008, the backlog of complaints stood at 2,318; On average, investigations take 8 months to complete.

Advocacy and compliance:       Encourage federal institutions to adopt sound information-handling practices; Monitor the performance of federal institutions through Report Cards; Give advice to parliament on legislative proposals and government on policy proposals; Make representations before the courts; Promote training for ATIP community; Communicate to Canadians, Parliament and the Media.

Understanding the current Canadian context

      The Access to Information Act has not significantly changed over the year but the context in which it operates, however, is completely different; The biggest change - Information Technology; Network Federalism; Public- private sector partnerships are the norm; Global, knowledge-based service economy; Expectations of Canadians:   Culture of service: most government information should be available for free and easily; New generation of users born in electronic age;

Freedom of information

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How do we bring the access to information program in the 21st Century?

Need a comprehensive approach which will address:

   the culture of access; the stewardship of the access to information program; and the legislative framework.

“There is no magic solution to the shortcomings of the system. A healthy access to information system needs

 all its parts functioning well in order to deliver the outcomes intended by Parliament        the right systems to process requests skilled staff supportive managers and Ministers adequate resources good information management good understanding of the principles and the rules by all, including third parties and effective approaches to oversight.” - 2002, Delagrave Report

A culture of openness

    Message has not gotten through in 25 years:   Information continues to be disclosed primarily through a formal ATI process; Information is mostly disclosed on a need to know basis; Requires a change of mindset:   Access to information as a core public service value; Leadership from the top; Encouraging institutions to:    Adopt access as their default mode; Pro-active disclosure; Virtual reading rooms.

Lessons from abroad (Sweden).

Duty to Assist

   Embedded in the original spirit and intent of the Act; Expressly included in the Act for a purpose:   Principle of statutory interpretation; Wide ranging responsibilities for institutions and the OIC:    Positive obligation on institutions to provide assistance; Proactive advice; Barber case (UK).

Access to information is a citizen’s right and a government’s duty (Claire Cronin, Commonwealth Human Right Initiative).

Administrative Reform

 A modern, rigorous and client focused stewardship requires:          Use of technology as an enabler in service delivery across the system; Well resourced/dedicated program; Increase capacity to achieve and promote proactive, informal and routine disclosure of information; Full integration of the new duty to assist; Target systemic issues more efficiently; Improve intra-governmental consultations; Appropriate performance measurement; Effective oversight body; Re-engineer the investigative process.

Legislative Reform

       Scope of application of the Act (requesters; institutions; records; Cabinet confidences); Scope of mandate:   Duty to document; Public education and research for Office; Scope of exemptions/exclusions; Applicable tests, e.g. injury, public interest; Frivolous and vexatious requests; Incentives to provide timely disclosure; Oversight:     Parliamentary review; Order-making powers; Direct access to the Courts; Audit role.

Looking to the future

 Our Act has the basic structure of a good law;  With the passage of time however, the Act needs to be looked at to see if improvements can be made so that it works well in practice, taking lessons as required from our provincial, territorial, and international partners.

 Need to take the Act and its administration into modern times;  All participants have a role to play.