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THE RILEY REPORT - October 2007
from Thomas B. Riley RTRiley6@cs.com
www.rileyis.com
Following is the Riley Report for October 2007. Please feel free to pass this on as you see fit. If you wish to use any part of the Report in an offline publication please acknowledge the author or contact the author for permission if it is to be fully republished offline. If you are not currently subscribed to the Riley Report (there is no charge) you may email RTRiley6@cs.com and simply put "subscribe" in the body of the text.
This month’s report is on the recently held conference entitled "Access to Information: The Next Challenges".
RILEY
INFORMATION SERVICES INC.
CONFERENCE REPORT
ACCESS
TO INFORMATION:
THE NEXT CHALLENGES
Introduction
Riley Information Services convened and presented this Conference on 24 September 2007 at the Westin Hotel in Ottawa.
The context of the Conference was the Right to Know Week, now celebrated in many countries around the world. Canada was an early innovator in bringing forward a freedom of information law. The federal Access to Information Act (ATIA) is now 25 years old, and due for Parliamentary review, and possible amendments by the Government of Canada. There has been both considerable concern and speculation on what conclusions the review might present, and what amendments might be contemplated. Both speakers and attendees at the Conference are involved with and/or have an interest in this topic, and many were either looking for some answers to the questions posed by the Conference, or seeking to share their insights based on previous experience with the issues.
David Brown, a Senior Associate with the Public Policy Forum in Ottawa, chaired the Conference. Mr. Brown also served as a speaker for one of the topical sessions. The keynote address was presented as the opening address of the Conference by Robert Marleau, the new Information Commissioner of Canada.
Keynote
address by the new
INFORMATION COMMISSIONER
OF CANADA
Robert Marleau
Mr. Marleau reminded his
audience that he was new in his full-time appointment as Information
Commissioner of Canada, although he had filled the post on an interim basis
after the resignation of the earlier Privacy Commissioner George Radwanski in
2003. He was also particularly
aware of the opportunity that the Parliamentary Review and possible amendments
represented. He therefore announced
that his assessment of the Access to Information Act (ATIA) and his
recommendations for amendments to improve the Act would not be released for
public discussion until they had been presented to the Parliamentary Committee
conducting the review.
Mr. Marleau has previously worked as an
officer of the House of Commons for many years, and he emphasized that his
interpretation of his responsibilities requires that the Parliamentary Committee
be the first to hear of his assessment and recommendations. [1]
In his view, this is the privilege of the House of Commons, and his is
duty-bound to respect that prerogative. At
the same time however, he was eager to share his general philosophy for how he
plans to conduct the business of the Commissioner’s Office.
As he explained it, Mr. Marleau takes
his approach from the conclusions of Professor Paul G. Thomas who states that
independent parliamentary agents are meant to serve two purposes:
(1) dealing with individual complaints about lack of fairness involved with various types of actions and inactions; and
(2)
promoting improved performance and appropriate standards in the delivery
of public programs and services.
In terms of applying these two
principles, Mr. Marleau states that he prefers negotiated settlements rather
than legal recourse. He will
instruct his investigators and mediators to clarify what requestors are seeking
and/or what objectors are opposing before making any recommendations or taking
any actions. His watchwords are
“the three Cs” consisting of Collaboration, Cooperation and Consultation.
Wherever possible his Office will look for an amicable solution where a
requestor is frustrated or an official opposed release of information.
As Commissioner, Mr. Marleau’s
priorities will be:
(i) the protection of individual rights to access to information
(ii) thoroughness and timeliness of investigations and service delivery
(iii) adjustment of his Office to the provisions of the ATIA
(iv) working with the Parliamentary Committee to improve the ATIA
What Mr. Marleau will be looking for is a fair application of the Act that will strike a balance between ensuring access, transparency and accountability of the government, while at the same time recognizing that some information produced by and for the government needs to be protected. Hence, access rights are not absolute – they are subject to specific and limited exceptions, balancing freedom of information against individual privacy, commercial confidentiality, national security, and the frank communications needed for effective policy-making.
The first topical session was titled WHAT IMPACTS WOULD PROPOSED AMENDMENTS HAVE FOR REQUESTORS AND THE ACCESS COMMUNITY? Thomas Riley of Riley Information Services chaired this session. The speakers were David Brown of the Public Policy Forum; and Sean Moore, Partner and Public Policy Advisor with Gowling Lafleur Henderson LLP of Ottawa.
Presentation
titled
“What Is The Context Of
Reform”
by David Brown
Mr. Brown’s work at the
Public Policy Forum (and on the writing of his thesis for his Ph.D.) suggest for
him that the possibilities for reforming the ATIA are tied up with the wider
changes that have to accompany such amendments, if meaningful change is actually
to occur. Such issues as the
organization of the machinery of government, the desirability for more open
government transactions, and the imperative for more transparency of government
operations, will all either contribute to, or hinder the likelihood of better
access to information.
For Mr. Brown this leads to the posing
of the question “What are the obstacles to reform?” One such obstacle is the basis for the mobilization of public
support for reform. The problem is
that those who see themselves as “stakeholders” in the request for more
access to government information, do not, at present, have a common purpose that
unifies them. Each person or each
group wants different information, from different officials or different
organizations, for different reasons or objectives.
In theory, or in general they all share a common concern, but in practice
they are diverse requestors, with no one to aggregate their views and present a
consistent perspective to government – they lack a lobbyist or political party
to represent their interest as information requestors.
This in turn prompts Mr. Brown to ask
“What is the future of ATI?” He
sees piece-meal reform as likely, and anticipates the following characteristics
for such reform:
(1) Better oversight (the combination of tighter regulations and a better organized Office of the Information Commissioner, should lead to more accountability and fewer infractions).
(2) Better information management (and more information [including historical data] becomes digitized, and records management improves, and as more powerful search engines becomes available, information requests should be less expensive and less time-consuming to fulfill).
(3)
More professionalism. With practice, communications officers should be
able to separate their “feelings and preferences” from the mechanism of the
AITA and its procedures, and hence be able to fulfill requests. This would be
according to the newly enacted “duty to assist” rather than as responses to
“hostile acts”.
This leads to a question about the even
bigger context of the AITA, namely “the context of present-day governance
itself.” This is where both our
post-World-War-Two history and the prospect for the future come into play.
Mr. Brown raised the following points:
(i) The rise and “fall” of the cold war – the bureaucratic culture of secrecy grew up during the war years (“Loose lips sink ships!”) and the subsequent cold war years (aggressive threats from without and subversive threats from within) combined to create an atmosphere of distrust and paranoia. With the fall of the Berlin Wall, that era and its rationale were considered over. The resurgence of Global Terrorism fuelled by religious fundamentalism and racial atavism has now re-activated a return to secrecy.
(ii) Windows of opportunity – reformers cannot expect to find either extensive platforms for action, or well-delineated places to practice it. Instead they must look for, and take up whatever opportunities become available on an ad-hoc basis.
Presentation titled
“Good Intentions and
Unintended Consequences”
by Sean Moore
- ATI remains an important tool for public-policy advocates and lobbyists
- Useful information under the ATI is becoming harder to get
- ATI is part of what is leading to “accountability overload”
- It will probably only get worse under the Federal Accountability Act (FedAA)
His presentation consisted in spelling
out the implications of these observations, and why they were leading to
unintended consequences.
Mr. Moore concurs with Mr. Marleau that
negotiation should precede formal procedures to get information from government
sources. He goes still further than
Mr. Marleau, in that he recommends that even an ATI request be the last resort
for the information requestor, rather than an early initiative.
The reason for this advice is that, according to him, those in government
who receive an ATI request often view it as a “hostile act” to which they do
not respond willingly.
On the other hand there are officials
who actually will invite you to file an ATI request. These two points only appear to be contradictory.
What they have prompted Mr. Moore to do is develop a number of “rules
of thumb” for requestors of information;
(1) Ask for the right thing (seek guidance from insiders who know what’s available)
(2) Recognize that the ATI request may be seen as a hostile act but there is a legal duty to comply
(3) Engage in Strategic Enquiry (learn to think like those who receive info requests):
(i) purpose of the request
(ii) how those in government “position” this information (its relevance)
(iii) internal concerns (how government insiders see the request)
(iv) process (what is involved in fulfilling the request)
(v) precedent (will the request lead to formalizing procedures)
(vi) politics (what are the political implications of information release)
All of these rules of thumb, and the
reluctance to use an AIT request, lead to his general rule to “use your
friends in LOW places (not high places)”.
In other words, front line government personnel are the best source of
information.
The unintended consequences of more stringent rules for lobbyists, is that the processes of tracking and accountability are leading to Accountability Overload in the Federal Government. Formal communications between officials and lobbyists must now be logged in case of recourse to review or recriminations. Conspiracy theories may now abound, in response to which less will be recorded and therefore there will be less information that can actually be accessed. In the long run this situation may not serve the interests of either the government or requestors, but at the moment the “accountability juggernaut” is still moving forward at a relentless pace.
The second topic session was titled WHAT IMPACTS WOULD REFORMS OF THE ACT BRING ABOUT? This session was chaired by Michael Turner, formerly of PWGSC, and now principal of e-Government Strategies of Ottawa. The speakers were Ross Hodgins, Director of the ATIP Division of Health Canada; and Joan Mann, of the Access to Information Directorate at Canada Post Corporation.
Presentation
titled
Possible Impact of Reforms
by Ross Hodgins
Mr. Hodgins expressed
considerable scepticism that the newly specified “duty to assist” would
actually produce the hoped-for results. He
said he was more inclined to regard it as simply a statement of “pious
intentions.”
The problem with access to information,
as Mr. Hodgins sees it, is the “culture of secrecy” that has prevailed in
government bureaucracy throughout its existence. To actually achieve access to information, with a duty to
assist built into the process, will require that the culture of secrecy be
replaced with a “culture of openness”, and that will not be an easy
accomplishment.
To make it clear how much conflict
occurs between secrecy and openness, Mr. Hodgins reviewed the various aspects of
openness:
- a new design for institutions would be needed
- the duty to assist would have to be fully implemented
- without regard to the identity of the requestor
- there would have to be every reasonable effort to assist
- responses to requests would have to be accurate and complete
- responses would have to be timely, and in the format requested
- sanctions for failure to assist would have to be consistent and effective
Although it may be easy to describe these requirements, Mr. Hodgins was of the opinion that it would be much more difficult to put them into practice. His views concur with those of Mr. Moore that requests for information from the government are often regarded as hostile acts. This attitude is often rationalized, from within the bureaucracy, by the contention that many requests for information are “frivolous, vexatious, and abusive” requests.
Presentation
titled
Fees
by Joan Mann
Ms. Mann decided to
illustrate her presentation by presenting a hypothetical case of costing the
various aspects of a request for information, and letting the audience decide
what kinds of fees, and at what level, should be charged to a requestor.
Her point in doing this was to show that there is some uncertainty in
interpreting the regulations, and number of decision points involved in
determining how much to invoice a requestor for information provided.
Section 11 of the ATIA covers the fees
to be charged to fulfill a request for information:
- an application fee is not to exceed $25
- any reasonable search and preparation time in excess of 5 hours is billable
- the cost of producing a record in an alternative format is billable
- the production of a machine readable record is billable
- reproduction costs are billable
The hypothetical request presented
by Ms. Mann can be characterized as follows:
- a request for comprehensive information on a particular topic
- a request to waive the fee in the public interest
- a request to provide the information on CD in WordPerfect format
Regarding each of the aspects of the
request, Mr. Mann clarified the regulations, specified the choices that could be
made, and polled the audience as to how they would decide which option to use,
and what fees to charge.
Many of those in the audience were ATI
staff from various government departments and agencies.
Sometimes there was a consensus amongst them on how to respond to a
particular decision point, but at other time there was considerable
disagreement. Furthermore, in cases
of either concurrence or disagreement, even practitioners did not necessarily
fully appreciate the details of the regulations or how they could be applied.
Hence, part of the lessons learned was the necessity to become fully
acquainted with the ATIA regulations, and to keep up with any changes that are
propagated by either new policies or judgments of the Office of the Information
Commissioner.
The other point that Ms. Mann made was that the practice of charging fees itself, needs to be reviewed, and perhaps curtailed. There are too many ways to interpret the regulations, with the result that charges for the same service might vary between different cases to such an extent that the discrepancies could not be justified. In any case, the cost of the time taken to decide how to invoice a request for information exceed the costs of actually fulfilling the request, so the biggest government expense comes from imposing fees in the first place. Therefore the fees determination process is not cost-effective, and should be abolished.
The title of the third topical session
was ACCESS AND CHANGE: NEW
INSTITUTIONS. Denis Kratchanov,
Director and General Counsel of the Information Law and Privacy Section at
Justice Canada, was the chair of this session.
The speakers were Claudette Désormeaux, a Coordinator at the Office of
the Commissioner of Official Languages; and Suzanne Legault, the Assistant
Commissioner, responsible for Policy, Communications and Operations at the
Office of the Information Commissioner of Canada.
Presentation :
The Administration of an ATIP Office
by
Claudette Désormeaux
- delegation
- awareness/education/training
- information
management
- policies/procedures/best
practices
- resources/tools
To be effective an
ATIP manager requires proper delegation. Specifically,
a single point of coordination and control of requests for information is
required. Otherwise inconsistency
and diminished quality in the management of requests and responses could cause
delays. As a result of these
problems the organization might be perceived as not taking its ATI obligations
seriously. That, in turn, could
lead to complaints and impact adversely on the ATIP staff.
- ATIP
personnel need to know the principles and values behind their roles and
responsibilities
- They
need education on the process of requests
- Employee
orientation should include sessions on access to information
- Training
time on information access should be allocated to ATIP employees
Proper information
management is needed to facilitate expeditious requests for information:
- records
management is needed to enable efficient and effective access
- guidelines
for filing and managing information should be in place
- training
on records management should be provided
Policies, procedures
and best practices should be developed and used:
- internal
policies and procedures should reflect those of Treasury Board
- best
practices can be adopted to keep everyone on staff consistent and compliant
Resources and tools
are what turn policies into actual practices:
- resources
should be sufficient to enable timely responses to requests
- organizational
growth rate should be anticipated, however roughly
- good
staff have to be recruited and retained
- proper
tools (databases, software) are required to track, measure and improve
performance
Presentation
:
The View from a
Newcomer
By Suzanne Legault
Ms. Legault is a
newcomer to the Office of the Information Commissioner of Canada, and she
thought it would be useful to review the ATIP situation from that perspective.
Her previous work experience was not is this area, so she has been on a steep
learning curve recently. In terms
of her role as Assistant Information Commissioner, and in keeping with the theme
of this Conference, she addressed the following topics:
- new
institutions covered by the ATIA
- impact
on Office of the Information
Commissioner of new institutions and requestors
- measures
taken to accommodate new institutions and requestors
- next
steps
The coverage of the
Access to Information Act was extended to include 69 additional institutions (an
increase of 37%). These included
the Office of the Director of Public Prosecutions (effective as of 12 December
2006), and five foundations (effective as of 1 April 2007):
- Canada
Foundation for Innovation
- Canada
Foundation for Sustainable Development Technology
- Canada
Millennium Scholarship Foundation
- Asia-Pacific
Foundation of Canada
- The
Pierre Elliot Trudeau Foundation
Five more Officers of
Parliament, including the Office of the Information Commissioner itself, were
also covered as of 1 April 2007, as were seven Crown Corporations, and
fifty-five subsidiaries of Crown Corporations.
As well as all of these, there is also coverage of six other
organizations. This will be quite
an increase in work load, and quite a responsibility for the Office of the
Information Commissioner. Both more
requests, and new provisions regarding the handling of requests, are being
prepared for The Treasury Board Secretariat which expects an additional 2,500
ATIA requests per year because of these changes.
Since the Federal Accountability Act, OIC has seen a 40% increase in the
average number of complaints per month, from 111 to 156.
There will also be a significant increase in turnaround time to complete
investigations.
New definitions and
clarifications of records and government institutions will be needed.
Reports on expenses of investigations must now be filed.
A variety of new exemptions to the ATIA have been put in place.
Besides all of the foregoing, the Duty to Assist will likely require
considerable more personnel and resources.
Because the Office of the Information Commissioner is now subject to the
ATIA, a process had to be created to ensure an arms-length implementation of
this requirement. In view of all of
the above, the Office of the Information Commissioner will now begin to seek (i)
secure additional funding; (ii) additional staff; (iii) improved service
delivery;
(iv) a review of the
complaints process; (v) timely interpretation of new provisions; (vi) meetings
with the newly covered institutions; and (vii) lead by example in the Duty to
Assist.
Comments
Compliance
Several of the
Conference speakers raised the possibility, in both their presentations and in
the question periods, that reinforcing and extending the ATIA might produce the
unintended consequence of making truly relevant and useful government
information actually less available. One
potential problem is the process overload caused by requiring more
accountability. In response to this
new requirement, some observers speculate that officials may begin to
increasingly keep the records of meetings and decisions in “side notes”
rather than in the official transcripts. These
“side notes” do not fall under the ATIP and so their contents are secure
(from the insiders’ point of view) and not accessible.
If this does happen
to any great extent, it will merely be an extension of the culture of secrecy by
developing a “work-around” to subvert the intentions of the new provisions
of the ATIA. However, in view of
the “seven kinds of risks” that public officials apply to information
sharing, such a “work around” practice could very well come into practice
– in fact, it may already be in current practice.
What, if anything,
can or should be done about such a new development that aims to continue the
weakening of Access to Information? Perhaps
to first thing to consider is that such ingenuity is probably quite typical of
those with both strong motivation and considerable skills.
If compliance is only voluntary, or if it is not rigorously enforced even
when it is mandatory, then this sets the example that openness is more practiced
in rhetoric than in reality. The
problem in a situation like this is that only strong leadership from top public
officials (the Prime Minister, other Ministers, Deputy Ministers, ADMs,
Directors, etc.), and the active use of both positive and negative sanctions, is
likely to be enough to effectively encourage openness.
More needs to be done to create a strategy that aims at getting buy-in at
this top level, if the response to extending Access to Information is not to
turn into just a series of side-steps of avoidance.
Accountability
The problems with
extending Accountability are of a similar nature to the problems encountered in
the attempt to overcome Secrecy, namely how much is enough, and how much is too
much? The new category of
“prescribed communications” between lobbyists and public officials that must
be recorded, includes meetings, phone calls, submissions, and e-mails.
These things must be reported monthly, be capable of verification, and
will undoubtedly lead to increased ATI requests and a growth in “conspiracy
theories” (speculations of what might
have been proposed and agreed to).
Attendees at the
Conference were referred to Prof. Paul Thomas and his work on Multiple
Accountability Disease (MAD). As
Prof. Thomas sees it, the problem is one of “trust deficit” and the solution
is not more layers and types of accountability but better performance and more
openness. The Federal
Accountability Act (FedAA) actually institutionalized mistrust, when what public
service leadership should be doing is creating a shared vision, a learning
environment, and consistent practices. For
those interested Prof. Thomas has posted his views on the Internet at http://www.ppforum.ca/common/assets/summaries/en/paul_thomas_march29_presentation.pdf
Coping
with the extended ATIA
All of the
practitioners present at the Conference agreed that the real measure of the
government’s support of the expanded ATIA coverage will be the extent to which
resources are provided to make the new requirements a reality.
There are now many more institutions to oversee, and the process of
vetting complaints has itself been enlarged.
So, more people will have to be employed, trained and deployed to meet
these responsibilities. If additional money and personnel are not provided, and
instead existing budgets are re-allocated, then both other functions and the new
ATIA functions will both be under-funded and over-worked.
The awareness and
training of everyone dealing with requests for information needs to be assessed
in terms of both the existing requirements and the new ones. Previous
surveys have indicated that too many of the staff handling requests for
information either do not know the intricacies of the law, or do not know how to
apply them effectively. In many
cases that planning of investigations has too many decision points, and too many
people involved. These processes
need to be re-assessed and re-designed. When
the time and cost of charging fees outweighs the costs recovered through fees,
the most appropriate policy will likely be to abolish fees.
The presumption when
handling access to information requests should be to grant the request unless
obvious impairment will accrue to the functioning of government.
Standardized criteria should be developed and deployed to ascertain any
such instances. Otherwise openness
should be practiced. This will
build the state of trust that Prof. Thomas is advocating, which will make the
public a lot more satisfied with government performance, and it will ease the
excessive workload and stress that many public officials currently encounter on
the job.
Conclusion
There were several
differing, robust views on the nature of the Access to Information Act, as to
what might be some of its flaws and the proposed suggestions and solutions to
better the law. The range of
analysis of the nature of the Access Act and the issues it brings illustrated
both the complex nature of the statute and the ways it is interpreted across the
broad spectrum of a wide access community.
The value of the
Access to Information Act is understood by all the players in the community –
the access coordinators, officials responsible for the law, the independent role
of the Information Commissioner and the Commissioner’s Office, the media,
requestors from across the country and the relevant oversight Committees in
Parliament. The latter is important
and in recent months the Parliamentary Committees have taken a more proactive
oversight of both the Access to Information and Privacy Acts (ATIP) in both the
House of Commons and the Senate. This
oversight has been welcomed by officials inside the ATIP system and concerned
outside observers from interested groups and the academic community.
The Access Act is
here to stay and with the rise in the number of requests, and many more to come
with the addition of the new institutions under the law, the issues will grow
and become more complex. Parliament’s
role is going to continue to be important. It should be incumbent on Parliament
to ensure there are sufficient funds and personnel in place to cope with the new
demands. More staff will be possibly needed to deal with the rise in requests.
On a final note, more
than one observer at the Access to Information: The Next Challenges
seminar commented that while there have been limited statutory changes in the
law the Access Act has, in fact, become more complex since the passage of the
Act twenty-five years ago due to court decisions on appeals, advisories and
regulations relating to the administration of the Act and other administrative
instruments. Continuing dialogue
between all the players will be essential to deal with the complexities and
paradoxes as the demands for access to information from Canadian citizens grows.
Continuous training and learning courses, which have been in place for
many years now, will be important to ensure many of the strains of administering
the law are relieved.
Riley Information
Services Inc.
Thomas Riley is available for consultations, preparation of reports, presenting workshops or delivering speeches at conferences and seminars on e-government, e-governance and e-democracy. Please contact me at the email address below for further details.
Thomas B. Riley
Executive Director and Chair
Commonwealth Centre for E-Governance
www.electronicgov.net
President, Riley Information Services Inc.
www.rileyis.com
email:
rtriley6@cs.com
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