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Displaying items by tag: access to information

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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