Canada: The Perfect Case Study
Suzanne Legault
Interim Information Commissioner of Canada
Panel 2—Specialized Institute, Ombudsman or Court: What Model to Follow?
“Transparency in the Americas”
October 27, 2009
Mexico City, Mexico
International Principles of Oversight
• Article 19, Principle 5
Requests for information should be processed rapidly and fairly
and an independent review of any refusals should be available.
• Atlanta Declaration, Key Principle #4k
The requester should be guaranteed a right to appeal any
decision, any failure to provide information, or any other
infringement of the right of access to information to an
independent authority with the power to make binding and
enforceable decisions, preferably an intermediary body such as
an Information Commission(er) or Specialist Ombudsman in the
first instance with a further right of appeal to a court of law.
2
Principles of Independence
• Non-partisan appointment process
• Accountability to legislative body
• Objective funding mechanism
• Arm’s length relationship to public bodies with the
authority to promote compliance and influence change
3
Factors Determining Choice
of Oversight Models
“Numerous factors may influence the enforcement model chosen,
and several further considerations will likely determine its overall
effectiveness and success in enforcing the right to information.”
(Laura Neuman, Carter Center, Enforcement Models: Content and Context)
•
•
•
•
•
Political culture
Maturity of bureaucratic structures
Legal framework
Economic environment
Social environment
4
Canada: The Perfect Case Study
5
Canadian Oversight Bodies –
Selected Authorities
CA
Order-Making
Ombudsperson
AB
BC
X
X
X
MB
X
NB
X
NL
X
NT
X
NS
X
NU
ON
PE
X
X
QC
X
Tribunal
SK
YT
X
X
X
Independent Body
X
X
X
X
X
X
X
Review Mechanism
X
X
X
X
X
X
X
Investigative Powers
X
X
X
X
X
X
X
Commissioner Initiated Complaints
X
X
X
X
Approaches to Systemic Issues
X
X
X
X
X
Advice on Proposed Legislation
X
X
X
X
Advice on Information Management
X
X
X
Public Education / Research
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
6
Measuring the Performance of
Oversight Bodies
• Success factors
– Accessible and affordable
– Necessary degree of statutory authority to resolve complaints and
enforce compliance with the legislation
– Capacity, based on an appropriately resourced office, to:
• Resolve complaints in a timely manner; and
• Identify and facilitate the resolution of systemic issues
– Mechanism to advise government on legislative initiatives and
influence change
– Mandate for public education and research
– Widely recognized results in improving compliance
• Impediments
– Lack of standardized definitions and data for performance
measurement and comparative analyses
7
Assessing Compliance
• Report cards to evaluate the impact of or issues
associated with
–
–
–
–
–
Extensions, consultations and delays
Highly sensitive requests
Information management
Human resources
Leadership
• Systemic issues – findings
–
–
–
–
Chronic delays
Deficiencies in information management
Insufficient qualified personnel
Lack of leadership
8
Transparency in the Digital Era
Open government data must be:
1. Spidered or indexed to exist;
2. Available in open and machine readable format to
engage; and
3. In a legal framework to allow it to be repurposed to
empower.
(David Eaves, Expert in public policy and open source and
network systems)
9
A New Model Is Needed
• Old model based on government
– Managing information on behalf of citizens
– Disclosing information in reactive mode
– Disseminating information via conventional communications
channels
– Restricting use and re-use of information, e.g. Copyright
• New model based on
–
–
–
–
Citizen engagement
Proactive disclosure
Multi-sector dissemination of information
Free flow of information
10
11