Monday, January 21, 2013

Set the default to open: my response to Canada's Access to Information Act Consultation

The Office of the Information Commissioner of Canada is conducting a public consultation into modernization of the Access to Information Act. Comments are due January 31. Following is my response.

Office of the Information Commissioner of Canada
Consultation on Access to Information Act

January 21, 2013

Dear Suzanne Legault,

Re: Consultation on Access to Information Act

This is a response from an individual scholar and librarian who is active in the area of information policy and open access. Thank you very much for the opportunity to participate in this consultation. In brief, my recommendation is to set the default to open. Narrow the scope of limitations to open access to information to substantive matters of national security or personal privacy, with an empowered and sufficiently funded Office of the Information Commissioner of Canada to act as an effective monitor to ensure these limitations are respected. Expand the range of information that falls under the Act to include Cabinet confidences. Expand the entities covered under the Act to include companies that are contracted to undertake work on behalf of the federal government, and companies that receive contracts and or subsidies from the federal government.  Detailed responses to the General Questions follow.

Right of access

Question: In an environment of increasing globalization, should any person be able to obtain government held records, notwithstanding their physical presence or citizenship?

Response: yes, in an environment of increasing globalization, anyone should be able to obtain government held records, notwithstanding their physical presence or citizenship. In the spirit of open government, the default for government information should be open access to anyone, anywhere. Canadian benefit from access to information provided by other governments.

Coverage of the act

Question: Should all federal entities be subject to the Act as a matter of principle, or should some be exempt from the Act’s requirements? What criteria or principles should determine which entity is covered by the Act?

Response: the act should cover all federal entities, all entities undertaking work on behalf of the government, and all entities receiving funding of any kind from the government.  That is, when work is contracted by the federal government out to companies, the companies should also be covered by the act, exactly as if the work were being done by the government department. When a company is awarded a contract by the government, or is given a subsidy, any information relating to the contract or subsidy should be subject to Access to Information Requests and a general expectation of open access to this information.

Limitation on the right of access

Question: In what circumstances should a universal right of access be limited? Should federal institutions have the discretion to limit disclosure? If so, should they be required to demonstrate that a defined injury, harm or prejudice will probably result from disclosure? Should the public interest be considered in the decision to withhold records?

Response: Any limitations should apply to particular information, and then only for substantial reasons – information that is classified for security purposes or that cannot be released without compromising personal privacy. The default should always be open. It is essential that a watchdog such as the Office of the Information Commissioner be empowered and sufficiently funded to monitor and ensure that any limitations on access to information fall within this scope.

Cabinet confidences

Question: Should the Access to Information Act exclude records that directly inform Cabinet decisions? If the exclusion is permitted, on what should it be based? Should the Information Commissioner be able to review Cabinet confidences?

Response: Canada is part of the Open Government Partnership. It is timely to make a serious commitment to openness. Cabinet should conduct its work in the open. The criteria for keeping information confidential by Cabinet should be exactly the same for all other federal information – national security or personal privacy. This is important for the work of the government to be, and to appear to be, transparent.

Awareness and education

Question: What role can or should the Office of the Information Commissioner play in helping Canadians to become more aware of their rights under the Access to Information Act?

Response: The Office of the Information Commissioner should provide education and awareness through a variety of activities (website, information sessions both virtual and in-person), and should leverage opportunities to work with other organizations with education and awareness mandates such as schools and libraries [disclosure: I am a librarian].

Once again thanks for the opportunity to participate. I will post this response to my blog.

Heather Morrison, PhD
hgmorris at sfu dot ca
The Imaginary Journal of Poetic Economics