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Displaying items by tag: access to information

Toronto Star journalist Theresa Boyle has just won an important victory for access to information rights and government transparency – one that is likely to be challenged before the Ontario Court of Appeal. On June 30, 2017, three justices of the Ontario Divisional Court unanimously upheld an adjudicator’s order that the Ministry of Health and Long-Term Care disclose the names, annual billing amounts and fields of medical specialization of the 100 top-billing physicians in Ontario. The application for judicial review of the order was brought by the Ontario Medical Association, along with many of the doctors on the disputed list (the Applicants).

The amount that the Ontario Health Insurance Program (OHIP) pays physicians for services rendered is government information. Under the Freedom of Information and Protection of Privacy Act (FOIPPA), the public has a right of access to government information – subject to specific exceptions that serve competing issues of public interest. One of these is privacy – a government institution can refuse to disclose information if it would reveal personal information. The Ministry had been willing to disclose the top 100 amounts billed to OHIP, but it refused to disclose the names of the doctors or some of the areas of specialization (which might lead to their identification) on the basis that this was the physicians’ personal information. The Adjudicator disagreed and found that the billing information, including the doctors’ names, was not personal information. Instead, it identified the physicians in their professional capacity. FOIPPA excludes this sort of information from the definition of personal information.

The Applicants accepted that the physicians were named in the billing records in their professional capacity. However, they argued that when those names were associated with the gross amounts, this revealed “other personal information”. In other words, they argued that the raw billing information did not reflect the business overhead expenses that physicians had to pay from their earnings. As a result, this information, if released, would be misinterpreted by the public as information about their net incomes. They argued that this made converted it into “other personal information relating to the individual” (s. 2(1)(h)). How much doctors bill OHIP should be public information. The idea that the possibility that such information might be misinterpreted could be a justification for refusal to disclose it is paternalistic. It also has the potential to stifle access to information. The argument deserved the swift rejection it received from the court.

The Applicants also argued that the adjudicator erred by not following earlier decisions of the Office of the Information and Privacy Commissioner (OIPC) that had found that the gross billing amounts associated with physician names constituted personal information. Adjudicator John Higgins ruled that “Payments that are subject to deductions for business expenses are clearly business information.” (at para 18) The Court observed that the adjudicator was not bound to follow earlier OIPC decisions. Further, the issue of consistency could be looked at in two ways. As the adjudicator himself had noted, the OIPC had regularly treated information about the income of non-medical professionals as non-personal information subject to disclosure under the FOIPPA; but for some reasons had treated physician-related information differently. Thus, while one could argue that the adjudicator’s decision was inconsistent with earlier decisions about physician billing information, it was entirely consistent with decisions about monies paid by government to other professionals. The Court found no fault with the adjudicator’s approach.

The Applicants had also argued that Ms Boyle “had failed to establish a pressing need for the information or how providing it to her would advance the objective of transparency in government.” (para 31). The court gave this argument the treatment it deserved – they smacked it down. Justice Nordheimer observed that applicants under the FOIPPA are not required to provide reasons why they seek information. Rather, the legislation requires that information of this kind “is to be provided unless a privacy exception is demonstrated.” (at para 32) Justice Nordheimer went on to note that under access to information legislation, “the public is entitled to information in the possession of their governments so that the public may, among other things, hold their governments accountable.” He stated that “the proper question to be asked in this context, therefore, is not “why do you need it?” but rather is “why should you not have it.”” (at para 34).

This decision of the Court is to be applauded for making such short work of arguments that contained little of the public interest and a great deal of private interest. Transparency within a publicly-funded health care system is essential to accountability. Kudos to Theresa Boyle and the Toronto Star for pushing this matter forward. The legal costs of $50,000 awarded to them make it clear that transparency and accountability often do not come cheaply or without significant effort. And those costs continue to mount as the issues must now be hammered out again before the Ontario Court of Appeal.

Published in Privacy

Bill C-58, the government’s response to years of calls for reform of Canada’s badly outdated Access to Information Act has been criticized for falling far short of what is needed and from what was promised during the last election campaign. I share this concern. However, this blog post focuses on a somewhat different issue raised by Bill C-58 – the new relationship it will create around privacy as between the Offices of the Information Commissioner and the Privacy Commissioner of Canada.

While Canadian provinces combine access to information and the protection of personal information in the hands of government under a single statute and a single commissioner, the federal government has kept these functions separate. As a result, there is a federal Information Commissioner charged with administering the Access to Information Act and a federal Privacy Commissioner charged with administering the Privacy Act. In 2001, the Privacy Commissioner was also given the task of overseeing Canada’s private sector data protection statute, the Personal Information Protection and Electronic Documents Act (PIPEDA). Certainly at the federal level it makes sense to separate the two regimes. While there is a close relationship between access and privacy (citizens have a right of access to their personal information in the hands of government, for example; and access rights are limited by the protection of the personal information of third parties), access to information and the protection of privacy have important – and sometimes conflicting – differences in their overall objectives. The reality is, as well, that both bring with them substantial and growing workloads, particularly at the federal level. Just as the role of the Privacy Commissioner has expanded with the addition of new responsibilities under PIPEDA, with the rapid advance of information technologies, and with new challenges at in relation to the actions of law enforcement and national security officials, so too has the Information Commissioner’s role been impacted by technology, and by the growing movement towards open government and open data.

In spite of these different spheres of activity, there remain points of intersection between access and privacy. These points of intersection are significant enough that changes to the role of one Commissioner may have implications for the other. For example, a government institution under the ATIA can refuse to disclose records if doing so would reveal third party personal information. The Information Commissioner, fielding a complaint about such a refusal, will consider whether the information at issue is personal information and whether it should be disclosed. The federal Privacy Commissioner, dealing with complaints regarding the mishandling of personal information, must also determine what is or is not personal information.

This overlap is poised to be affected by proposed changes to the ATIA. First, Bill C-58 will make the definition of “personal information” in the ATIA match that in the Privacy Act. Second – and significantly – the Bill will give the Information Commissioner order-making powers. This means that the Information Commissioner can rule on whether information in the hands of a government institution is or is not personal information. The decision will be binding and enforceable if it is not challenged. The Privacy Commissioner currently does not have order-making powers (these are on the wish-list for Privacy Act reform). Ironically, then, this means that the Information Commissioner will be in a position to make binding orders regarding what constitutes personal information in the hands of government whereas the Privacy Commissioner cannot. Even if the Privacy Commissioner eventually gets such powers, there will still be the potential for conflicting decisions/interpretations about how the definition of personal information should be applied to particular types of information.

No doubt in recognition of the potential for conflict in the short and longer term, Bill C-58 provides for the Information Commissioner to consult with the Privacy Commissioner. The proposed new section 36.2 reads:

36.‍2 If the Information Commissioner intends to make an order requiring the head of a government institution to disclose a record or a part of a record that the head of the institution refuses to disclose under subsection 19(1), the Information Commissioner may consult the Privacy Commissioner and may, in the course of the consultation, disclose to him or her personal information. [my emphasis]

In theory then, the Information Commissioner should touch base with the Privacy Commissioner before making orders regarding what is or is not personal information, or perhaps even whether certain personal information is subject to disclosure. It is worth noting, however, that the new provision uses the verb “may”, rather than “must”. Neither consultation nor consensus is mandatory.

Bill C-58 anticipates potential problems. A revised section 37(2) requires the Information Commissioner to give notice to the Privacy Commissioner before any order is made regarding the disclosure of personal information. Section 41(4) then provides:

41(4) If neither the person who made the complaint nor the head of the institution makes an application under this section within the period for doing so, the Privacy Commissioner, if he or she receives a report under subsection 37(2), may, within 10 business days after the expiry of the period referred to in subsection (1), apply to the Court for a review of any matter in relation to the disclosure of a record that might contain personal information and that is the subject of the complaint in respect of which the report is made.

Thus, if the Privacy Commissioner disagrees with a decision of the Information Commissioner regarding what constitutes personal information or whether it should be released, he can apply to a court to have the dispute resolved before a final order is made by the Information Commissioner. Note that this can happen even if the applicant and the government institution are satisfied with the Commissioner’s proposed resolution.

It will be interesting to see whether the Privacy Commissioner will get order-making powers if and when the Privacy Act is reformed. This seems likely. What will be even more interesting will be whether any decision by the Privacy Commissioner about what constitutes “personal information” will similarly be open to challenge by the Information Commissioner, with the outcome to be settled by the Federal Court. This too seems likely. In the provinces, decisions about personal information for access and privacy purposes are made by a single Commissioner. The best way to achieve consensus as to the meaning of “personal information” at the federal level with two different Commissioners with different mandates, will be to have any conflicts referred to the courts. This will add a layer of delay in any case where disputes arise, although in theory at least, with open lines of communication between the two Commissioners, such disputes may be few and far between. Nevertheless, there may be a disadvantage in pushing controversies over the definition of “personal information” directly to the courts which lack the same experience and expertise as the two Commissioners in an increasingly complex data landscape. True, the courts already have the last word when it comes to interpreting the definitions of personal information in either statute. But those interpretations have, to date, been confined in impact to one or the other of the statutes and understood in the context of the particular legislative goals underlying the specific statute at issue. The impact of these changes will interesting to monitor.

 

Published in Privacy

Note that for ease of reference the different provisions of the bills/laws discussed here are reproduced at the end of this post.

The Liberal government, which had promised during the last election campaign to reform Canada’s outdated Access to Information Act (ATIA) has tabled its reforms in Bill C-58. First reviews of the bill, by key users of the ATIA such as academics and journalists have been highly critical of the many ways in which the proposed reforms fall short of what was promised. While acknowledging the importance and salience of these critiques, this post will focus on two very specific amendments in this Bill that are most welcome.

Government departments and agencies subject to the ATIA have long been able to refuse to disclose records covered by solicitor-client privilege. This is an important exception. As the Supreme Court of Canada stated in Blood Tribe, “Solicitor-client privilege is fundamental to the proper functioning of our legal system.” (at para 9). The court noted that the privilege permits a free flow of legal advice between lawyer and client, and stated that without solicitor-client privilege, “access to justice and the quality of justice in this country would be severely compromised.” (para 9) It is not surprising, therefore that documents covered by solicitor-client privilege would not be disclosable under the ATIA. In the same vein, the right to access one’s personal information under the federal Privacy Act, or the Personal Information Protection and Electronic Documents Act (PIPEDA), is similarly limited – access cannot be had to records containing personal information that are subject to solicitor-client privilege.

While this is understandable, the problem has long been that there has been no proper oversight of assertions of solicitor-client privilege by record-holders. The courts have treated the privilege as so absolute, that only the most explicit statutory language will permit a Commissioner (whether the Information Commissioner or a Privacy Commissioner) to review such documents in order to determine whether the claimed privilege is actually justified. In Blood Tribe, the Supreme Court of Canada found that the rather open-ended language in PIPEDA did not meet the test, and as a result the federal Privacy Commissioner could not review claims of solicitor client privilege in records containing personal information under that statute. Much clearer language was needed.

While the outcome in Blood Tribe is fair enough, a 2016 decision by the Supreme Court of Canada seemed to move from protecting solicitor client privilege to fetishizing it. In Alberta (Information and Privacy Commissioner) v. University of Calgary, the Supreme Court of Canada considered wording in Alberta’s Freedom of Information and Protection of Privacy Act that was quite a bit more explicit than that in PIPEDA, and that appeared quite sufficient to give Alberta’s Commissioner the power to review claims of solicitor-client privilege in government records sought through access to information requests. Yet the majority of the Court determined that Blood Tribe dictated that only the clearest statutory language could derogate from the protection of solicitor-client privilege. They took the position that solicitor-client privilege was no mere privilege of the law of evidence. It arose in circumstances outside the court room, and had the character of “an important civil and legal right and a principle of fundamental justice in Canadian law.” (at para 41) Because of this, the majority ruled that the wording of the statute, which allowed the Commissioner to access records “despite . . . any privilege of the law of evidence” (s. 56(3) was “not sufficiently clear, explicit and unequivocal to evince legislative intent to set aside solicitor-client privilege.” (at para 44) It should be noted that Justice Cromwell wrote a separate opinion in University of Calgary making it clear that he strongly disagreed with the interpretation of the majority, and stating that in his view the language of the statute was perfectly clear and gave the necessary powers to the Commissioner. The majority decision in University of Calgary was so surprising that Ontario’s Information and Privacy Commissioner in his Annual Report released in mid-June 2017, asked the Ontario government to amend very similar language in Ontario’s Freedom of Information and Protection of Privacy Act so as to make it crystal clear that the Ontario Commissioner has the power to review claims of solicitor client privilege in documents being withheld by government departments and agencies.

If passed, Bill C-58 will amend section 36(2) of the ATIA to provide in language that even the most punctilious judge would find hard to ignore, that the Information Commissioner can review records being withheld on the basis of solicitor-client privilege in order to determine whether such privilege is properly claimed. Notably, the bill will also amend the Privacy Act to add similar language giving the Privacy Commissioner the power to review records withheld under claims of solicitor client privilege. Both sets of amendments make it clear that this review does not constitute a waiver of those privileges or of professional secrecy. It is a necessary compromise to ensure a proper balancing of interests. These changes, at least, should be welcome.

Statutory language discussed in the above post:

PIPEDA (interpreted in Blood Tribe and found to be too vague to support review by the Commissioner):

12.1 (1) In the conduct of an investigation of a complaint, the Commissioner may

[. . . ]

(c) receive and accept any evidence and other information, whether on oath, by affidavit or otherwise, that the Commissioner sees fit, whether or not it is or would be admissible

Access to Information Act (currently):

36 (2) Notwithstanding any other Act of Parliament or any privilege under the law of evidence, 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.

Privacy Act (currently):

34 (2)  Notwithstanding any other Act of Parliament or any privilege under the law of evidence, the Privacy Commissioner may, during the investigation of any complaint under this Act, examine any information recorded in any form under the control of a government institution, other than a confidence of the Queen’s Privy Council for Canada to which subsection 70(1) applies, and no information that the Commissioner may examine under this subsection may be withheld from the Commissioner on any grounds.

Freedom of Information and Protection of Privacy Act (Alberta) (at issue in University of Calgary and found to be insufficient):

56(3) Despite any other enactment or any privilege of the law of evidence, a public body must produce to the Commissioner within 10 days any record or a copy of any record required under subsection (1) or (2).

Ontario’s Freedom of Information and Protection of Privacy Act:

52 (4) In an inquiry, the Commissioner may require to be produced to the Commissioner and may examine any record that is in the custody or under the control of an institution, despite Parts II and III of this Act or any other Act or privilege, and may enter and inspect any premises occupied by an institution for the purposes of the investigation.  R.S.O. 1990, c. F.31, s. 52 (4).

 

Proposed Amendment to the Access to Information Act in Bill C-58:

36 (2) Despite any other Act of Parliament, any privilege under the law of evidence, solicitor-client privilege or the professional secrecy of advocates and notaries and litigation privilege, and subject to subsection (2.1), the Information Commissioner may, during the investigation of any complaint under the Part, examine any record to which this Part applies that is under the control of a government institution, and not such record may be withheld from the Commissioner on any grounds.

Proposed Amendment to the Privacy Act in Bill C-58:

34 (2) Despite any other Act of Parliament, any privilege under the law of evidence, solicitor-client privilege or the professional secrecy of advocates and notaries and litigation privilege, and subject to subsection (2.1), the Privacy Commissioner may, during the investigation of any complaint under the Act, examine any information recorded in any form under the control of a government institution, other than a confidence of the Queen’s Privy Council for Canada to which subsection 70(1) applies, and no information that the Commissioner may examine under this subsection may be withheld from the Commissioner on any grounds.

 

Published in Privacy

A recent court decision (Assn. for Reformed Political Action Canada v. Ontario) raises some interesting questions about the relationship between the Charter right to freedom of expression and access to information rights.

On June 9, 2017, Justice Labrosse of the Ontario Superior Court of Justice ruled that a statutory exemption to Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) violated s. 2(b) of the Canadian Charter of Rights and Freedoms, and could not be justified under s. 1. He issued a suspended declaration of invalidity, giving the province 12 months to repair the offending legislation.

Like other access to information regimes in Canada, Ontario’s FIPPA sets a default rule that citizens have a right of access to information in the hands of government and its agencies and departments. This default rule is subject to a number of exceptions that allow government institutions to refuse to disclose information that would, among other things, violate solicitor client privilege, reveal third party confidential commercial information, or adversely impact privacy rights. When a government institution refuses to release all or some of the requested information on one of these statutory grounds, the requesting party can complain to the Office of the Information and Privacy Commissioner (OIPC), which is authorized to resolve such disputes. That, in a nutshell, is the regime established under FIPPA.

In this case, the applicants challenged a provision of FIPPA that was added to the statute in 2012. Section 65(5.7) provides that “This Act does not apply to records relating to the provision of abortion services.” The Applicants argued that this exception violated their right to freedom of expression under s. 2(b) of the Charter by limiting their right of access to information. In a 2010 decision, the Supreme Court of Canada held that there was no constitutional right of access to information; rather, access was a “derivative” right related to the freedom of expression. A denial of access to information could violate the freedom of expression where access “is a necessary precondition of meaningful expression on the functioning of government.” (at para 30) Justice Labrosse’s decision therefore turns on a conclusion that the denial of access to the statistical data at issue in this case prevents “meaningful expression on the functioning of government.” In this case, Justice Labrosse characterizes the information currently available as “less than 50% of some of the statistical information on a matter of important public interest.”(at para 6).

To be clear, the effect of s. 65(5.7) is not to prohibit the disclosure of information relating to the provision of abortion services. Rather, it simply removes decisions about the disclosure of such information from the statutory scheme. The Ontario government argued that freedom of expression rights were not affected by s. 65(5.7) because hospitals and/or the government could still release such information outside of the statutory scheme. Indeed, the government of Ontario had disclosed statistical information about abortion services to the applicant, and had even argued that because this information had been provided, the application was moot.

Prior to 2012, requests for data relating to the provision of abortion services could be made to government departments or agencies that were in possession of such data. For example, the Ministry of Health would have data about the number of abortions billed to OHIP, and those data could be sought through an access to information request. In responding to requests, the department or agency would ensure that the release of data was not subject to any of the exceptions in the legislation. Any disputes would be dealt with by the OIPC. In 2012, FIPPA was amended so as to include hospitals under the legislative scheme. This meant that the public would be able to make freedom of information requests to hospitals for data about their services. It was at this time that the legislation was amended to add s. 65(5.7). Justice Labrosse noted that the government’s justification for the addition of this exception was “to address the concern that disclosure of records relating to the provision of abortion services could pose risks to the safety and security of [hospital] patients, health care providers and other staff.” (at para 59). He characterized this as a pressing and substantial objective. He expressed skepticism, however, about the government’s stated secondary objective which was to “allow hospitals to decide if they wish to voluntarily disclose records relating to the provision of abortion services.” (at para 59). He noted that there was no policy framework put in place for such disclosures, and that no voluntary disclosures had ever been made.

Justice Labrosse essentially found that the exemption of the application of FIPPA to information about abortion services, which, as argued by the government, leaves hospitals and other government bodies free to disclose this information outside the FIPPA scheme, violates the freedom of expression. It is therefore the failure to ensure a framework for access to information, with all of its balancing exceptions and limitations that presents the constitutional problem. In rejecting the sufficiency of assurances by government that information can be provided outside of FIPPA on a voluntary basis, he noted that “Ontario has not pointed to any policy or legislative provision which would allow interested parties to rely on voluntary disclosure by Ontario.” (at para 40)

Justice Labrosse also rejected Ontario’s claims that Charter rights were not affected since statistical data was already available from other sources such as the Canadian Institutes for Health Information (CIHI), billing information voluntarily disclosed by the government, and statistical information available in some scholarly research. The government argued that this information was sufficient to allow for an informed public debate. In his view, significant discrepancies between the government data and the CIHI data meant that the CIHI data was not an adequate substitute. He also added that “requiring interested parties to project forward from dated statistical information published in journals” (at para 42) was also not sufficient to allow for meaningful public discussion.

Although Justice Labrosse accepted that the government had a pressing and substantial concern in protecting the safety and security of patients and health care providers, he found that the s. 65(5.7) went too far. He noted that the exception “includes no criteria to allow for disclosure of records which do not impact the objective of protecting the privacy and safety of patients seeking abortion services” (at para 66). The suspended declaration of invalidity means that the government now has 12 months in which to try to craft an exception that better balances their objectives with the public right of access to information.

It is worth comparing the provision struck down in this case with the new exemption in FIPPA for information relating to medically assisted dying. Medically assisted dying is also controversial and the government was clearly concerned about possible privacy and security implications for individuals and institutions. Yet the solution they crafted is much narrower than the broad exemption for information relating to abortion services. A new section 65(11) provides that: “This Act does not apply to identifying information in a record relating to medical assistance in dying.” This exception is only with respect to “identifying information”, rather than with respect to “records” more generally. Section 65(12) defines “identifying information as information “(a) that relates to medical assistance in dying, and (b) that identifies an individual or facility, or for which it is reasonably foreseeable in the circumstances that it could be utilized, either alone or with other information, to identify an individual or facility”. This provision may well serve as a model for the government as it crafts a new exception to replace s. 65(5.7).

 

 

Published in Privacy

Note: I was invited by Canada’s Information Commissioner and the Schools of Journalism and Communication, and Public Policy and Administration at Carleton University to participate in a workshop to launch Right to Know Week 2016. This was a full afternoon workshop featuring many interesting speakers and discussions. This blog post is based on my remarks at this event.

For the last 5 years or so, governments at all levels across Canada have been embracing the open government agenda. In doing so, they have expressed, in various ways, new commitments to open data, to the proactive disclosure of government information, and to new forms of citizen engagement. Given that the core goals of the open government movement are to increase government transparency and accountability in the broader public interest, these developments are positive ones.

There is a risk, however, that public commitments to open government have become a bit of a ‘feel good’ thing for governments. After all, what government doesn’t want to publicly commit to being open, transparent and accountable? As a result, it is important to look behind the rhetoric and to examine the nature of the commitments made to open government in Canada and to question how meaningful and enduring they really are.

For the most part, commitments to open government in Canada have been manifested in declarations, policy documents, and directives. These documents express government policy and provide direction to government actors and institutions. Yet they are “soft law” at best. They are not enacted through a process of legislative debate, they are not expressed in laws that would have to be formally repealed or amended in order to be altered, there are no enforcement or compliance mechanisms, and they remain subject to change at the whim of the government in power. Directives and policies, of course, can provide rapid and responsive mechanisms for operationalizing changes in government direction, and so I am not criticizing decisions to set open government in motion through these various means. But I am suggesting that a longer term commitment to open government might require some of these measures to be expressed in and supported by legislation in order to become properly entrenched.

For example, much effort has been invested by the federal government in creating an open licence to facilitate reuse of government data and information. After a slow and sometimes painful process, we now have a pretty good open government licence. It is based on the UK OGL and is very user friendly compared to earlier iterations. It is bilingual and it can be customized to be used by governments at all levels in Canada (for example, a version of this licence was just adopted by city of Ottawa). This reduces the burden on provincial and municipal governments contemplating open government and it creates the potential for greater legal interoperability (when users combine data or information from a number of different governments in Canada).

But let us not forget why we need an open government licence in Canada. An open licence permits the public to make use of works that are protected by copyright without the need to ask permission or pay royalties, and with the fewest restrictions on re-use as possible. Government works in Canada – and this includes court decisions, statutes, Hansard, government reports, studies, to name just a few – are protected by copyright under section 12 of the Copyright Act. One might well ask why, instead of toiling for years to come up with the current open licence, the government has not shown its commitment to openness by abolishing Crown copyright. It’s not as radical as it might sound. In the U.S., s. 105 of the Copyright Act expressly denies protection to works of the U.S. government without any obvious negative consequences. In the U.S., these works are automatically in the public domain. This legislated, hard law solution makes the commitment real and relatively permanent. Yet as things stand in Canada, government works are protected by copyright by default, and governments choose which works to make available under the open licence and which they wish to provide under more onerous licence terms. They can also decide at some point to tear up the open licence and go back to the way things used to be. Crown copyright in its current incarnation sets the default at ‘closed’.

It is true that some aspects of open government are already part of our legislative framework. We have had freedom of information/access to information laws for decades now in Canada, and these laws enshrine the principle of the public’s right to access information in the hands of government. However, the access to information laws that we have are ‘first generation’ when it comes to open government. The federal Act is currently being reviewed by Parliament, and we might see some legislative change, though how much and how significant remains to be seen. As Mary Francoli has pointed out, there wasn’t really a need for further review – the new government had plenty of material on which to take action in proposing amendments to the Act.

The many deficiencies in the Access to Information Act have been well documented. For example, in 2015 the Information Commissioner set out 85 proposed reforms to the statute to modernize and improve it. The June 2016 Report by the Standing Committee on Access to Information, Privacy and Ethics on its Review of the Access to Information Act takes up many of these proposals in its own recommendations for extensive reforms to the Act. We are now awaiting the government’s response to this report. Rather than review the many recommendations already made, I will highlight those that relate to my broader point about enshrining open government principles in legislation

The Access to Information Act as it currently stands is premised on a model of individuals asking for information from government, waiting patiently while government puts together the requested information, and then complaining to the Commissioner when too much information is redacted or withheld. Open government promises both information and data proactively, in reusable formats, and without significant restrictions on reuse. While proactive disclosure of information and open data cannot replace the access to information model (which is, itself, capable of considerable improvement), they will provide quicker, cheaper and more effective access in many areas. Yet the Access to Information Act does not currently contain any statement about proactive disclosure. Proactive disclosure – also referred to as “open by default” is not really “open by default” unless the law says it is. Until then, it is just an aspirational statement and not a legal requirement. We see a proliferation of policies and directives at all levels of government that talk about proactive disclosure, but there are not firm legal commitments to this practice, or to open data. And, although I have been focussing predominantly on the federal regime, these issues are relevant across all levels of government in Canada.

A core principle of open data is that the data sets provided by governments should be made available in open, accessible and reusable formats. Proactive disclosure of information should also be in reusable formats. Access under the conventional regime is also enhanced when the information disclosed is in formats that facilitate analysis and reuse. Yet even under the existing access model, there is no default requirement to provide requested information in open, accessible and reusable formats. It is important to remember that it is not enough just to provide ‘access’ – the nature and quality of the access provided is relevant. The format in which information is provided in a digital age can create a barrier to the processing or analysis of information once accessed.

I would like, also, to venture onto territory that is not addressed in the calls for reform to access to information laws. Another challenge that I see for open data (and open information) in Canada relates to the sources of government data. I am concerned about the lack of controls over the use of taxpayer dollars to create closed data. As we move into the big data era, governments will be increasingly tempted to source their data for decision-making from private sector suppliers rather than to generate it in-house. We are seeing this already; an example is found in recent decisions of some municipal governments to source data about urban cycling patterns from cycling app companies. There will also be instances where governments contract with the private sector to install sensors to collect data, or to process it, and then pay licence fees for access to the resulting proprietary data in the hands of the private sector companies. In these cases, the terms of the license agreements may limit public access to the data or may place significant restrictions on its reuse. This is a big issue. All the talk about open government data will not do much good if the data on which the government relies is not characterized as “government data”. It is important that governments develop transparent policies around contracts for the collection, supply or processing of data that ensure that our rights as members of the public to access and reuse this data – paid for with our tax dollars – are preserved. Even better, it might be worth seeing some principle to this effect enshrined in the law.

Tuesday, 09 February 2016 10:19

Evaluating Canada's Open Government Progress

Carleton University’s Mary Francoli has just released her second report on Canada’s progress towards its Open Government commitments as part of its membership in the Open Government Partnership. The report is currently open for public comment.

The report offers a detailed and thorough assessment of the commitments made by the Canadian government in its second Action Plan on Open Government and the extent to which these commitments have been met. For those interested in open government, it makes interesting reading, and it also sets out a number of recommendations for moving the open government agenda forward in Canada.

Because the report is a review of Canada’s progress on meeting its commitments, it is shaped by those commitments rather than by, for example, a list of open government priorities as identified by multiple stakeholders. Indeed, problems with stakeholder consultation and engagement are themes that run through this report. Although Francoli notes that there have been improvements over time, there is clearly still work to be done in this regard.

Francoli’s detailed review shows that progress has certainly been made in moving forward the open government agenda. She notes that “significant progress” has been made with respect to many of the government’s commitments in the second Action Plan, and that in some cases the government’s progress has exceed its commitments. Not surprisingly, however, much remains to be done. Francoli identifies a number of shortcomings flagged by stakeholders that form the basis for her recommendations.

Foremost among the shortcomings is the woeful state of Canada’s Access to Information Act. Although this legislation has been the subject of criticism and calls for reform for decades – and by a broad range of stakeholders – the previous government remained impervious to these demands. That an open government agenda could be advanced with much fanfare without tackling access to information in any substantive way should undermine confidence in Canada’s commitment to open government. Top among Francoli’s recommendations, therefore, is reform of the legislation, and she has written a separate opinion piece on this topic in the Hill Times. In this article she notes with frustration that although the new Liberal government expressed a commitment to reform the access to information regime in its election platform, that commitment is now being expressed in terms of a “review” of the legislation. Francoli justifiably questions whether we really need further review given the many studies already conducted and the ink already spilled about the deficiencies in the legislation. A commitment to meaningful reform might just require swifter action.

Other issues flagged by Francoli include what she refers to as a “data deficit” – the apparent stalling of progress in the release of open data and the lack of diversity in the available data at the federal level. The concerns over a data deficit extend to the cancellation of government-led data collection; the axing of the long-form census being perhaps the most notorious (though not the only) example of this. Although the census has been revived, Francoli notes that other cancelled studies have not. Further, Francoli cautions that the government’s web renewal strategy is having the effect of pushing departments and agencies to reduce digital content available over the web, with the resultant loss of content available to the public. This latter concern ties in as well to Francoli’s recommendation that the government develop and publicize a clear policy on the preservation of digital material.

In addition to recommendations related to these issues, Francoli also recommends that the government overhaul the Advisory Panel on Open Government. This Panel (on which I served) met only very rarely, and opportunities to provide feedback became very limited by tight time constraints imposed on the few meetings that did take place. Francoli is concerned about a disjunction between stakeholders’ perspectives on open government and those of the government, and she sees an Advisory Panel with a new mandate and a new mode of operation as being one way to ensure more open lines of communication.

There may be a common misperception that open data and proactive disclosure are inexpensive and resource-light endeavors (after all, the government is just publishing online information already gathered, right?). Yet, this is far from the case. Open data in particular is resource-intensive, and Francoli notes that the two Action Plans had identified no additional resources for open government (apart from the $3 million dollars set aside for the mysterious Open Data Exchange (ODX)). She therefore also recommends that the government commit the necessary resources to open government in future action plans.

Francoli’s report can be found here, and comments on the report can be made here. The comments are public, and it is also possible to read comments by other stakeholders and to engage in dialogue about the report. With a new government in the process of setting its open government agenda, this is an opportunity to help shape its direction.

A recent decision of the Federal Court of Canada has overturned settled expectations around fees for access to information at the federal level. The case arose after the Information Commissioner of Canada asked the Federal Court to rule on the longstanding practice of federal agencies and departments to charge fees relating to the disclosure of electronic records. For those not familiar with the federal scheme, there is a small application fee for an access to information request of $5.00. This doesn’t sound like much (although advocates argue that there should be no fee at all). However, the application fee is far from the whole story. Regulations passed under the Access to Information Act allow agencies and departments to charge additional fees for the costs of reproducing materials in various formats, for producing records in alternative formats, and fees for search and preparation. The search and preparation fee can be charged to offset the costs of searching and preparing records that are “non-computerized”. According to the regulations, the first 5 hours of search and preparation are free; after that the regulations provide for a fee of $2.50 per person per quarter hour for time spent preparing “non-computerized” records. For records produced from “a machine readable record”, there are no search and preparation fees. Instead, requesters can be charged $16.50 per minute for the cost of the processor and other devices used in the retrieval, and $5 per person per quarter hour for any time required to programme a computer to search for the information that is sought. Essentially, then, there are (potentially very high) search and preparation fees for non-computerized records and no search and preparation fees for “machine-readable” records.

At the heart of this case was the issue of what constituted a “non-computerized” record. The long-standing practice (supported by the previous Information Commissioner) was to treat records electronic formats such as MS Word, for example, as “non-computerized records” which would be subject to the search and preparation fees. The category of “machine-readable” records was reserved for records which did not exist at the time of the request, but that had to be created, for example by searching a database for relevant responses to a query.

The particular case at the heart of this reference was a request made by an individual for 3 sets of records from Human Resources and Skills Development Canada that included the table diagram for a database, system user manuals and guides for the database system, and the developer’s “Changelog” document relating to that database. All documents existed in electronic format. HDRSC informed the applicant that it would charge search and preparation fees of $4,180 for access to these documents. The applicant complained to the Commissioner about the estimate of 423 hours of search and preparation time which lay behind the fee, essentially seeking a reduction of the estimate. The Commissioner instead took the position that the search and preparation fees were not permitted by the regulations since the documents were “machine-readable records”.

It seems rather extraordinary to argue, as the Attorney General did in this case, that electronic records were not “machine-readable records”, but were instead “non-computerized records” within the meaning of the regulations. Justice Harrington acknowledged the bizarreness of the position, quoting the famous exchange between Alice and Humpty Dumpty (from Alice in Wonderland) as to the meaning of words. Humpty Dumpty’s conclusion, of course, is that what a word means will depend on who has the ultimate control. In this case, it was Justice Harrington who had the final say – and he ruled that documents in electronic format were “machine-readable records” and thus not subject to search and preparation fees. He concluded that “Whether stored in an internal hard drive, external hard drive or the now obsolete punch cards and floppy disks, such records are machine readable and therefore computerized.” (at para 54) The decision is a game changer, particularly in a context where so many government records are in some electronic format or another.

Of course, the decision must be situated in its particular context. Justice Harrington noted that the Access to Information Regulations are sorely out of date. This is no surprise – the entire regime is as out-of-date as a Compaq computer. The Information Commissioner only recently issued a report to Parliament calling for a massive overhaul of the Access to Information Act (see my post on this report here). The interpretation problems and the gap into which this case fell are most likely due to regulations that were drafted with the technology of the time in mind. Yet, as Justice Harrington notes, “Legislation is promulgated to the public. . . The language cannot be so obscure that one must glean through hundreds of statutes and thousands of regulations in order to arrive at its true meaning.” (at para 55) Although he expressed some sympathy for the many government agencies and departments that lack the funds to properly deal with access to information requests, he observed that “it is Parliament that placed these government institutions under the Act. If they are underfunded, they should not be looking to the courts for redress” (at para 62). Fees can be a real barrier to meaningful access to information in the hands of government, and although this case centres on the interpretation of the regulations, the bigger picture is of an Act and Regulations that are out of date and inconsistent with the federal government’s professed embrace of open government.

It remains to be seen what the upshot of this decision will be. While it is a victory of sorts for the Information Commissioner and for those Canadians who seek access to information in the hands of the federal government, it is a victory that turns on the wording of regulations and not on some broad principle of open access. The government could simply change the regulations to impose new fees – and perhaps even to raise existing fees that have not been touched since 1986. Of course, to do so without also tackling the myriad problems with the regime so clearly laid out in the Commissioner’s recent report would be to display a profound lack of commitment to meaningful access to information and open government.

 

 

 

Published in Privacy

Canada’s Access to Information Act is outdated and inadequate – and has been that way for a long time. Information Commissioners over the years have called for its amendment and reform, but generally with little success. The current Information Commissioner, Suzanne Legault has seized the opportunity of Canada’s very public embrace of Open Government to table in Parliament a comprehensive series of recommendations for the modernization of the legislation.

The lengthy and well-documented report makes a total of 85 recommendations. This will only seem like a lot to those unfamiliar with the decrepit statute. Taken as a whole, the recommendations would transform the legislation into a modern statute based on international best practices and adapted both to the information age and to the global movement for greater government transparency and accountability.

The recommendations are grouped according to 8 broad themes. The first relates to extending the coverage of the Act to certain institutions and entities that are not currently subject to the legislation. These include the Prime Minister’s Office, offices of Ministers, the bodies that support Parliament (including the Board of Internal Economy, the Library of Parliament, and the Senate Ethics Commissioner), and the bodies that support the operations of the courts (including the Registry of the Supreme Court, the Courts Administration Service and the Canadian Judicial Council). A second category of recommendations relates to the need to bolster the right of access itself. Noting that the use of some technologies, such as instant messaging, may lead to the disappearance of any records of how and why certain decisions are made, the Commissioner recommends instituting a legal duty to document. She also recommends adding a duty to report any unauthorized loss or destruction of information. Under the current legislation, there are nationality-based restrictions on who may request access to information in the hands of the Canadian government. This doesn’t mean that non-Canadians cannot get access – they currently simply have to do it through a Canadian-based agent. Commissioner Legault sensibly recommends that the restrictions be removed. She also recommends the removal of all fees related to access requests.

The format in which information is released has also been a sore point for many of those requesting information. In a digital age, receiving information in reusable digital formats means that it can be quickly searched, analyzed, processed and reused. This can be important, for example, if a large volume of data is sought in order to analyze and discuss it, and perhaps even to convert it into tables, graphs, maps or other visual aids in order to inform a broader public. The Commissioner recommends that institutions be required to provide information to those requesting it “in an open, reusable, and accessible format by default”. Derogation from this rule would only be in exceptional circumstances.

Persistent and significant delays in the release of requested information have also plagued the system at the federal level, with some considering these delays to be a form of deliberate obstruction. The Report includes 10 recommendations to address timeliness. The Commissioner has also set out 32 recommendations designed to maximize disclosure, largely by reworking the current spider’s web of exclusions and exemptions. The goal in some cases is to replace outright exclusions with more discretionary exemptions; in other cases, it is to replace exemptions scattered across other statutes with those in the statute and under the oversight of the Information Commissioner. In some cases, the Commissioner recommends reworking current exemptions so as to maximize disclosure.

Oversight has also been a recurring problem at the federal level. Currently, the Commissioner operates on an ombuds model – she can review complaints regarding refusals to grant access, in adequate responses, lack of timeliness, excessive fees, and so on. However, she can only make recommendations, and has no order-making powers. She recommends that Canada move to an order-making model, giving the Information Commissioner expanded powers to oversee compliance with the legal obligations set out in the legislation. She also recommends new audit powers for the Commissioner, as well as requirements that government institutions consult on proposed legislation that might affect access to information, and submit access to information impact assessments where changes to programs or activities might affect access to information. In addition, Commissioner Legault recommends that the Commissioner be given the authority to carry out education activities aimed at the public and to conduct or fund research.

Along with the order-making powers, the Commissioner is also seeking more significant consequences for failures to comply with the legislation. Penalties would attach to obstruction of access requests, the destruction, altering or falsification of records, failures to document decision-making processes, and failures to report on unauthorized loss or destruction of information.

In keeping with the government’s professed commitments to Open Government, the report includes a number of recommendations in support of a move towards proactive disclosure. The goal of proactive disclosure is to have government departments and institutions automatically release information that is clearly of public interest without waiting for an access to information request that they do so. Although the Action Plan on Open Government 2014-2016 sets goals for proactive disclosure, the Commissioner is recommending that the legislation be amended to include concrete obligations.

The Commissioner is, of course, not alone in calling for reform to the Access to Information Act. A private member’s bill introduced in 2014 by Liberal leader Justin Trudeau also proposes reforms to the legislation, although these are by no means as comprehensive as what is found in Commissioner Legault’s report.

In 2012 Canada joined the Open Government Partnership, and committed itself to an Action Plan on Open Government. This Action Plan contains commitments grouped under three headings: Open Information, Open Data and Open Dialogue. Yet its commitments to improving access to information are focussed on streamlining processes (for example, by making it possible to file and pay for access requests online, creating a virtual library, and making it easier to search for government information online.) The most recent version of the Action Plan similarly contains no commitments to reform the legislation. This unwillingness to tackle the major and substantive issues facing access to information in Canada is a serious impediment to realizing an open government agenda. A systemic reform of the Access to Information Act, such as that proposed by the Information Commissioner, is required.

Published in Privacy

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