ACCESS TO INFORMATION ACT
RECOMMENDATIONS FOR STRENGTHENING
THE A CCESS TO INFORMATION R EGIME IN THE GOVERNMENT OF CANADA
Submitted by
Ms. Maja Daruwala
Mr. Venkatesh Nayak, Mr. James Ferguson & Ms. Namrata Yadav
Commonwealth Human Rights Initiative (CHRI)
B-117, First Floor, Sarvodaya Enclave,
New Delhi – 110 017
Tel: 011-2685 0523 / 2686 4678
Fax: 011-2686 4688
Email: [email protected] &
[email protected]
August 2008
ACCESS TO INFORMATION ACT
RECOMMENDATIONS FOR STRENGTHENING
THE A CCESS TO INFORMATION R EGIME IN THE GOVERNMENT OF CANADA
Submitted by
Commonwealth Human Rights Initiative
Introduction
With the enactment of the Access to Information Act (“the Act”) in 1983 Canada became one
of the then few Commonwealth countries to officially recognise people’s right to seek and
obtain information from government institutions. This law was amended in 2006 further to the
enactment of the Federal Accountability Act, 2006. The Office of the Information
Commissioner – an adjudicatory authority created by the Act – has launched an exercise to
hold consultations to identify ways and means of strengthening the Act. CHRI commends the
Office of the Information Commissioner of Canada for seeking the views of civil society in
this exercise.
CHRI has been advocating for the adoption of access to information laws in Commonwealth
countries for more than ten (10) years. CHRI was on the civil society drafting committee that
drew up a draft Bill which eventually was enacted as The Right to Information Act by the
Indian Parliament in 2005. CHRI has been closely involved with the process of its
implementation in various jurisdictions in India and has also trained several thousand officers
in their duties under this law. CHRI’s recommendations have been incorporated in similar
legislation in the Cayman Islands in the Caribbean. CHRI has advised government and civil
society in Uganda to design and plan the process of implementing its Access to Information
Act passed in 2005. CHRI has also shared its technical expertise on access to information
(ATI) matters with governments and civil society advocates in Bangladesh, Ghana, Fiji,
Kenya, Malawi, Malta, Nigeria, Pakistan, Sierra Leone, Sri Lanka and Tanzania which are
considering similar legislation. CHRI is submitting the following recommendations for
strengthening the access to information regime in the Government of Canada based on its
research and ground level experience in Commonwealth countries.
Recommendations for Strengthening the Access to Information Regime
CHRI would like to draw attention to the following fifteen (15) key issues which would
particularly improve the Act’s effectiveness in promoting transparency and accountability and
bring it into line with international best practice:
1. Expand the availability of the right of access: Canada, as a member of the United
Nations, has acceded to the International Covenant on Civil and Political Rights
(ICCPR) in 1976. Article 19 expressly provides for every human being the “freedom
to seek, receive and impart information and ideas of all kinds, regardless of frontiers,
either orally, in writing or in print, in the form of art, or through any other media of his
choice.” The Organisation of American States and the Commonwealth - both of
which Canada is a member - have also endorsed minimum standards on the right to
information that must be enjoyed by all people. These minimum standards should
form the basis for Canada’s information access regime.
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The right of access under the Act falls short of the human right envisioned under
Article 19 of the ICCPR. The formulation under section 4(1) of the Act extends the
right of access to: (a) Citizens; and (b) Permanent residents within meaning of
Immigration and Refuge Protection Act. In addition to this, Regulation SOR/89-207
extends this definition to include: (c) all individuals who are present in Canada but
who are not Canadian citizens or permanent residents within the meaning of the
Immigration and Refugee Protection Act; and (d) all corporations that are present in
Canada. However, consideration should be given to extending this definition to every
person irrespective of nationality. In an increasingly globalising world, where
students, migrant workers, and tourists visit Canada, they will also have information
needs whether or not they are in Canada at the time of making the request. These
groups are equally deserving of access rights. As sensitive information held by a
government institution will be covered by one or more exemptions provided for in the
Act, even citizens and permanent residents will not be able to access it. Conversely
whatever information that may be disclosed to a citizen or permanent resident of
Canada is not likely to have a harmful effect when shared with a non-citizen if all
other procedural requirements under the Act have been complied with.
International best practice standards support the extension of the Act to allow all
persons access to information under the law, whether citizens, residents or noncitizens (such as asylum seekers). This approach has been followed in a number of
jurisdictions, including the United States and Sweden, the two countries with the
oldest access laws, and more recently in Ireland and the UK, whose laws provide for
anyone around the world to request information. Consider section 6(1) of Ireland’s
Freedom of Information Act, 1997: “Subject to the provisions of this Act, every person
has a right to and shall, on request therefor, be offered access to any record held by
a public body and the right so conferred is referred to in this Act as the right of
access.” Consider expanding the scope of the right of access to all persons
irrespective of their nationality.
2. Broaden the Act’s Coverage: Despite amendments to the Act made under the
Federal Accountability Act, S.C. 2006, c. 9, the Act remains very limited both in terms
of bodies covered and in terms of the extent that government institutions are
covered. While this was understandable at the time the Act was passed, current
access laws in other countries are much broader in scope and cover a much wider
range of bodies. In particular, no organ of the State must be excluded: the traditional
assumption that access laws cover only the Executive leaving out the Legislature and
the Judiciary is no longer appropriate in a modern democracy. This Act should be
extended to cover all organs and agencies of the State. Consideration in particular
should be given to extending the coverage of the Act to the administrative
functions of the judiciary and the legislature as they are also funded by the
taxpayer.
Currently, there is no consideration of whether disclosure of information held by
private bodies could actually be in the public interest. This is a key deficiency,
because private bodies have a huge impact on public life such that the public
increasingly feels the need to exercise their right to know in respect of private
business information especially when their actions affect people’s wellbeing.
International experience demonstrates that, with more and more private companies
providing public services through outsourcing or under government contracts,
previously clear distinctions between public and private information may need to be
reconsidered for the public good. It is increasingly important that the public interest
receive greater attention under the Act in light of these ongoing developments.
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Consider section 50 of South Africa’s Promotion of Access to Information Act 2000,
and section 16(3) of Antigua and Barbuda’s The Freedom of Information Act, 2004,
both of which apply the respective Acts to private bodies where the information
requested is “required for the exercise or protection of any rights”. While this is a
novel approach, attention needs to be given to the fact that these laws prioritise the
protection of human rights over corporate rights. Consider the following international
examples where private bodies have been brought within the ambit of access to
information regimes:
South Africa’s Promotion of Access to Information Act, s.50: Information held
by or under the control of a private body where access to that information is
necessary for the exercise or protection of any right.
[NB: As this formulation is too broad, South Africa placed a financial
benchmark for private companies that are covered by its ATI Act ]
Antigua and Barbuda’s Freedom of Information Act, 2004 s. 16(3): A person
making a request for information to a private body which holds information
necessary for the exercise or protection of any right shall, subject only to the
relevant provisions of Parts II and IV of this Act, be entitled to have that
information communicated to him.
India’s Right to Information Act 2005, s. 2(h): A “public authority”…includes
any non-Government organization substantially financed, directly or indirectly
by funds provided by the appropriate Government.
Jamaica’s Access to Information Act, 2002, s. 5(3): Bodies which provide
services of a public nature which are essential to the welfare of society can
be covered by the Act by Order.
United Kingdom’s Freedom of Information Act, 2000, s. 5(1): Bodies which
appear to exercise functions of a public nature, or are providing any service
whose provision is a function of an authority under a contract made with that
public authority can be covered, by Order of the Secretary of State.
Consideration should be given to including in the Act a new category of dutyholders in the private sector to be termed – “private bodies”.
We also recommend that the Office of the Information Commissioner consider
expanding the scope of the Act to expressly include Parliament and officers of
Parliament, such as Ministers, MPs and their advisers. Information which discloses
advice given to the Government during the policy and decision-making process is
exactly the kind of information that the public should be able to access, unless it is
particularly sensitive, and thus subject to a separate, case-by-case exemption. It is
precisely the openness in disclosing an opinion of the legal service that confers
greater legitimacy on public institutions in the eyes of Canadian citizens.
Consideration may be given to expanding the coverage of the Act in the above
manner.
In addition to the above, we would like to bring your attention to Section 20.4 where
the Head of the National Arts centre Corporation shall refuse to disclose any records
requested that would reveal the terms of the contract for the services of a performing
artist. It is urged that such blanket refusal is unnecessary and against the principle of
maximum disclosure and accountability. Consideration may be given to deleting
this provision.
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In furtherance, Section 21 (a) and (c) states that the head of a government institution
has the power to refuse to disclose any record in relation to the advice or
recommendations developed by or for a government institution or a minister of the
Crown as well as positions or plans developed for the purpose of negotiations carried
on behalf of the Government of Canada if the record came into existence less than
20 years prior to such request. CHRI submits that Canada is a functional and
responsible democracy and the people have a right to know what advice,
recommendations, positions and plans are being tendered to the constitutional
functionaries and whether that advice was legal and just. In view of our contention
regarding the deletion of clause (a) and (c) of this section 21 consideration may be
given to deleting both clauses.
3. Replace the definition of “Record” with a definition of “Information”: The
purpose of the Act is to provide a right of access to information held by or under the
control of government institutions; while the Act defines and uses the term “record” it
fails to define the broader term “information”. The use of the term “record” under the
Act is also limiting as it provides for a documentary framework, (see in contrast, the
broader definitions captures in the laws in India and New Zealand for example). The
current formulation of the term “record” could exclude access to things like samples
of materials used in public works (see section 2(f) and 2(j)(iii) in India’s Right to
Information Act for a good example), or information not yet recorded by an official but
which should have been as a legal duty to do so exists; this is also confusing as
many sections of the Act are framed in terms of “information” (see, for example,
section 3.1)
Consideration should be given to replacing the definition of “record” with a definition
of “information”. Allowing access to “information” will mean that applicants will not be
restricted to accessing only information which is already in the form of a document or
hard copy record at the time of the application. Consider the following definition of
“information” as an alternative:
“information” means any material in any form, including records, documents,
file notings, memos, emails, opinions, advices, press releases, circulars,
orders, logbooks, contracts, reports, papers, samples, models, data, material
held in any electronic form and any information relating to a private body
which can be accessed by a government institution under any law.
4. No requirement to provide reasons: International best practice requires that
access to information laws incorporate a provision that explicitly empowers people to
seek and obtain information without assigning reasons for doing so. Conversely duty
holders under such laws will not have the power to compel a requestor to reveal the
reasons for seeking information. The Act does not contain any such provision.
Consideration may be given to inserting a new provision that explicitly states
that a requestor shall not be compelled to disclose reasons as to why he/she is
seeking the information.
5. Include a duty to confirm or deny the existence of a record: Access to
information laws are like any other class of laws whose primary objective is to lay
down norms and standards with a certain degree of fixity so that the outcomes of the
legal process are predictable to a large extent. It is this fixity which makes Sate
agencies professional and dependable. Subsection 10(2) vests with the head of the
government institution the discretionary power to refuse to indicate whether the
requested record exists or not. Affairs of government bodies cannot be based on the
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famous ‘uncertainty principle’ discovered by the renowned physicist Mr. Werner
Heisenberg in the field of quantum physics. Similarly such uncertainties must not be
permitted to come in the way of the operation of access to information laws. A record
either exists or can be created from a set of disaggregate records or it simply does
not exist. Therefore the head of a government institution has the duty to confirm or
deny the existence of a record that is the subject of a request. If public interest is
better served by withholding access to the record one or more of the exemptions
provided in the Act may be invoked. Consideration may be given to amending this
sub-section to place a duty on the head of the government institution to
confirm or deny the existence of a record.
6. Designate Information Officers in bodies covered by the Act: The Act does not
currently provide for the creation of dedicated information officers/ information
managers in the employ of government institutions for smoother and better
functioning of the Act. Experience from countries implementing similar laws indicates
that designating information officers creates a lot of convenience for requestors and
reduces the burden from the heads of such bodies who are otherwise busy attending
to routine business. Section 5(1) of India’s RTI Act empowers all public authorities to
designate as many Public Information Officers as may be necessary for the purpose
of receiving information requests from people and making decisions with regard to
disclosure. Consideration may be given to including a provision requiring the
head of government institutions to designate one or more information officers
in a similar manner.
7. Improve access to records produced from machine readable records: the Act
provides under section 4(3), “any record…that does not exist but can, subject to such
limitations as may be prescribed by regulation, be produced from a machine readable
record…shall be deemed to be record….” Unfortunately, the twenty-five year old
proviso under section 3 of Regulation SOR/83-507 provides, “…a record that does
not exist but can be produced from a machine readable record under the control of a
government institution need not be produced where the production thereof would
unreasonably interfere with the operations of the institution.”
This proviso was incorporated into the Act’s associated Regulations at a time when
information technology was at a fraction of what it is today; it also provides altogether
too much discretion to government institutions without further input from the
applicant. Consideration should be given to incorporating a direct reference in
this section to subsection 4(2.1) of the Act or to amending section 3 of
Regulation SOR/83-507 as follows:
For the purpose of subsection 4(3) of the Act, and subject to subsection
4(2.1) of the Act, a record that does not exist but can be produced from a
machine readable record under the control of a government institution need
not be produced where the production thereof would substantially and
unreasonably interfere with the operations of the institution, and it has not
proved possible for the applicant, with advice from the head of the institution,
to redefine his request in such a manner as to make it more easily addressed
by the authority. (emphasis added)
8. Expand the options for making information requests: The Act should be
amended to acknowledge the technological advancements that have taken place
from the time the Act was drafted. Since the Act was enacted technology has
advanced well beyond what the original drafters might have anticipated, and in this
regard the Act must build upon these gains to provide greater ease of access to
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information requestors. As more and more advanced voice recognition software is
churned out by the IT sector, systems should be created harnessing such technology
whereby people can make telephonic requests for information. Section 8(2) of the
United Kingdom’s Freedom of Information Act, 2000, accounts for these
technological developments by expressly allowing requests to be made via electronic
media:
(2) For the purposes of subsection (1)(a), a request is to be treated as made
in writing where the text of the request—
(a) is transmitted by electronic means,
(b) is received in legible form, and
(c) is capable of being used for subsequent reference.
This is not a novel concept as there already exists in Canadian legislation similar
provisions to make use of technological innovations. Consider, for instance, section
40 of Canada’s Personal Information Protection and Electronic Documents Act
(PIPEDA) and section 9 of Saskatchewan’s Electronic Information and Documents
Act, 2000. This should be expressly provided for under the Act or, alternatively, there
should be express reference to section 40 of PIPEDA. Moreover, government
institutions should be educated to prepare them for these changes.
Section 6 should also be amended to enable a person who is unable to make a
written request, due to disability or illiteracy or otherwise, to make an oral request
using similar technology. While subsection 4(2.1) of the Act imposes on the head of a
government institution a general duty to assist, there is no explicit duty under section
6 to assist the applicant in preparing application. Consider s. 14(2) of Trinidad and
Tobago’s Freedom of Information Act, 1999:
(2) Where a request in writing is made to a public authority for access to an
official document, the public authority shall not refuse to comply with the
request on the ground that the request does not comply with section 13(2),
without first giving the applicant a reasonable opportunity of consultation with
the public authority with a view to the making of a request in a form that does
comply with that section.
Consideration should be given to extending the duty to assist under subsection 4(2.1)
to assist the applicant in this capacity. Depending on the local circumstances, it may
also be appropriate for oral requests to be permitted more generally, if for example,
geography may make it difficult in practice for people to make applications in writing
(e.g., because mail delivery is unreliable or because telephone requests may
expedite the process). Consider, for example, section 6(1) of India’s Right to
Information Act, 2005:
(1) A person, who desires to obtain any information under this Act, shall make
a request in writing or through electronic means…specifying the particulars of
the information sought by him or her:
Provided that where such request cannot be made in writing, the Central
Public Information Officer or State Public Information Officer, as the case may
be, shall render all reasonable assistance to the person making the request
orally or to reduce the same in writing.
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Consideration may be given to expanding the number of options available to a
person for making information requests under the Act.
9. Collection of fees must be subject to the principle of reasonableness: Section
11 provides a framework for collecting fees for accessing records. Government
institutions are empowered to collect application fees up to twenty five dollars.
Application fee of five dollars is currently charged at the application stage. As access
to government information is a universally recognised human right ideally, no person
should be charged any fee for exercising this right. However it may be conceded that
such a measure may impose heavy financial burden on government institutions
which are not provided with an unlimited pool of resources to be used at will. Section
11 in its entirety should be subject to the principle of reasonableness. Excessive fees
should not become a barrier for any person to access information. At the very least,
no application fee should be levied because the initial work required to locate
information and determine whether it ought to be disclosed or not is a routine
and expected task of government officers. This is the case in Trinidad and
Tobago where subsection 17(1) of the Freedom of Information Act 1999 specifically
states that no fees shall be imposed for applications.
Subsection 11(6) provides discretionary circumstances where fees for access may
be waived. This is good practice but the conditions under which such discretion may
be exercised must also be outlined in the principal Act instead of leaving it to be
decided in the Regulations. For example, where payment of the fee would cause
financial hardship to the applicant (bearing in mind the applicant’s means and
circumstances), or where a government institution fails to meet the time limit set by
the Act all fees must be waived if a decision of access is taken at any stage of the
process of seeking and obtaining information. For example, subsections 17(2) and
(3) of the Trinidad and Tobago Act impose a waiver of fees where time limits under
the Act are exceeded and require the refund of fees where access is not granted
within seven (7) working days of payment of fees, respectively. Section 29(5) of
Australia’s Freedom of Information Act 1982 also serves as a useful model in this
regard. Consideration should expressly be given to waiving fees in cases
where applicants are students or indigent or the disclosure of the requested
information would otherwise be in the larger public interest.
Subsection 11(2) allows the government institution the power to charge fees for
search where the time taken to locate the records requested exceeds five hours.
Passing on the burden of costs relating to search, compilation or collation of the
information requested to the requestor is not in tune with international best practice
standards. For example, India’s access law and the rules prescribed under it do not
authorise duty-holders to collect any fee for searching records. The expenditure
related to the working of the government institution is in every case borne by the tax
payers and there is no reason why a tax paying requestor should be burdened twice.
Consideration may be given to deleting this provision or at the very least
increasing the time limit for search from five to ten (10) hours.
It is also unusual that the Act would require under subsection 11(4) that a
“reasonable” proportion be paid in advance of disclosure as a means of deposit.
Government institutions should be required to calculate the precise amount in
advance of disclosure and the applicant should be required to pay this amount at one
time unless he/she wishes to appeal against the amount before the Information
Commissioner. Consideration may be given to amending the fee related
provisions as recommended above.
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10. Avoid blanket exclusion and narrow down the exemptions: Some of the Act’s
provisions exclude entire categories of records from disclosure. For example,
subsection 13(1) empowers the head of a government institution to refuse access to
records containing information obtained in confidence from foreign governments,
international organizations, provincial, municipal and aboriginal governments in
Canada. This is not in tune with the twin principles of maximum disclosure and
minimum exemptions that should be incorporated in a good information access law.
At the very least such blanket exclusion for entire categories of information must be
avoided and they must be replaced with circumstantial exemptions subject to a harm
test. For example if disclosure of information obtained from foreign governments or
from provincial and aboriginal governments is likely to severely harm relations with
the Government of Canada or irreparably impede the ability of any of the involved
parties to maintain good relations with the other parties then access “may” (as
opposed to ‘shall’) be denied. Consideration may be given to rephrasing this subsection.
Section 16.3 states that the Chief Electoral Officer has the power to refuse disclosure
of any record requested under this Act that contains information regarding
investigation, examination, or review in performance under the Canada Election Act.
The key concern ought to be whether disclosure would actually cause serious
damage to a legitimate public interest which deserves to be protected.
Consideration may be given instead to withholding disclosure only when it will
lead to "serious harm" or “serious damage” to relations of the welfare of the
country.
It is problematic that the offices of the Auditor General of Canada, the Commissioner
of Official Languages for Canada, the Information Commissioner, and the Privacy
Commissioner are almost wholly excluded from the obligations of maintaining
transparency under subsection 16.1(1) of the Act. These bodies should not be
excluded from public scrutiny. Access to information held by such institutions may be
denied if public interest is better protected by non-disclosure. (Similar points could be
raised about the exemptions created under sections 20.1, 20.2, 20.4, 68.1 and 68.2).
These are blanket exclusions and go against the best practice standards of
maximum disclosure. All public bodies that are funded by taxpayers should be
covered by this law and any exemptions created under the act should be narrowly
defined.
Section 18(a) of the Act reserves power with the heads of Government institutions to
refuse disclosure of information in relation to trade secrets, financial, commercial,
scientific or technical information that belongs to the government of Canada or
government institutions and has suitable value or is reasonably likely to have
substantial value. International best practice requires class exemptions be avoided in
access to information laws. The Government of Canada and government institutions
are bodies established in the public interest, funded by the taxpayers’ money and
they function for the sake of the people they should also be subject to the same
standards of disclosure as other government agencies. Consideration may be
given to replacing this provision with a circumstantial exemption subject to a
public interest override.
Internationally it is an accepted norm that all exemptions to disclosure must be
circumstantial in nature subject to strict harm tests. Furthermore a good access to
information law should contain a public interest override over all exemptions. This
clause enables the government institution or the relevant authority empowered to
adjudicate over information access disputes to disclose even exempt information if
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public interest is better served by doing so. Consideration may be given to
replacing all provisions that grant blanket exclusion to bodies or categories of
information with circumstantial exemptions subject to harm tests. All
exemptions must be subjected to a liberal public interest test.
To reiterate the points stated above, in accordance with international best practice,
every exemption should be considered in three parts: Is the information covered by a
legitimate exemption? Will disclosure cause substantial harm? Is that harm greater
than the public interest in disclosure?
This approach is similar to the one endorsed by the Grand Chamber of the European
Court of Justice in the July 2008 ruling of Turco et al. v. Council of the European
Union, which was decided pursuant to Regulation (EC) No. 1049/2001 of the
European Parliament and of the Council. Therein the Court held that when asked to
disclose a document, the Council had to assess – in each individual case – whether
the document fell within one of the enumerated exceptions. In the case of legal
advice received by the council, it first had to satisfy itself that the document, or parts
of it, did indeed relate to legal advice, the heading of the document not being
conclusive in that regard. Second, it had to verify disclosure of the document, or parts
thereof, would undermine the protection of the advice: the risk of such undermining
had to be reasonably foreseeable and not merely hypothetical. Third, if the Council
concluded that there was such a risk, it had to determine whether there was an
overriding public interest justifying disclosure despite the undermining of its ability to
seek legal advice and receive frank, objective and comprehensive advice.
11. Allow for deferred access to information: The manner of phrasing of section 26 of
the Act gives the impression that the heads of government institutions have the
power to refuse disclosure of any record requested if the he/she believes on
reasonable grounds that the material in the record or any part will be published by a
government institution, agent of the Government of Canada or minister of the Crown
within ninety days after the request is made. This is not in keeping with international
best practices.
For example, section 22(2) of the UK Freedom of Information Act, 2000 states that
the duty to confirm or deny does not arise if the information which is held by the
public authority shall be published by such authority or any other person, at some
future date. A government institution must not be given the power to deny access to
any information that is likely to be published at a future date. Instead a suitable time
limit should be prescribed in the Act to defer access to such record. However if the
government institution fails to publish the information within such a period the
requestor must be provided access. Consideration may be given to amending
section 26 of the Act suitably to incorporate a provision for deferring access to
a document.
12. Allow more grounds for filing complaints: The Act provides for several grounds
where a requestor may file a complaint with the Information Commissioner. However
lack of any response from the government institution even after the expiry of the time
limit mentioned in section 7 is not a ground for approaching the Information
Commissioner with a complaint. Access to information laws in other countries, for
example, India contain a provision of ‘deemed refusal’ [subsection 7(6)]. International
best practice requires that all information requests not dealt with within the stipulated
period be treated as instances where access has been denied. This enables the
applicant to file a complaint with the Information Commission instead of waiting
endlessly for a decision from the head of a government institution. Consideration
may be given to adding a new provision relating to deemed refusal.
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Similarly, the Act does not recognise the provision of false, misleading and
incomplete information as a legitimate ground for filing a complaint although this is
treated as an offence under subsection 67(1). For example under section 18(1)() of
India’s RTI Act a requestor may file a complaint with the Information Commission if
he/she has reason to believe that a public authority has furnished misleading, false,
incomplete information. Consideration may be given to including this valid
ground under subsection 30(1).
13. Increase the limitation period for filing complaints and reviews: Section 31 of
the Act requires that a complaint under section 30 be filed within 60 days of receiving
a notice of refusal from a government institution. Section 41 of the Act stipulates a
time limit of 45 days for filing a review before the Federal Court against a notice of
refusal to disclose issued by the government institution. The time limits prescribed
are too short according to international standards. For example, in India a
complainant has ninety days to approach the Information Commission. The
Commission also has the power to condone delays if there are justified reasons.
There is no provision for condoning delay in the Act. Consideration may be given
to increasing the time limits to 90 days in both instances and including a
provision that empowers the Information Commissioner and the Federal court
to condone delay when there are justifiable grounds to do so.
14. Tracking decisions and disclosures: In order to streamline the access system, the
Act should be amended to require the Government to maintain a database of
decisions made by government institutions on information requests and a public
register disclosing what information has been released. These databases will assist
individuals to avoid making requests for information that is already in the public
domain. It will also create convenience for the public to monitor compliance of
government institutions with the access law. Such data collection, and such registers,
if properly maintained, would additionally serve as a database of precedents to
improve consistency in decision-making by government institutions; it could also
serve as a mechanism for assessing whether certain government institutions are
more prone to secrecy than others.
CHRI notes that until recently such a database existed in the form of Coordination of
Access to Information Requests System, or CAIRS, originally created in 1989. This
electronic list of nearly every access to information request filed to federal
departments and agencies was used as an internal tool to keep track of requests and
co-ordinate the government's response between agencies to potentially sensitive
information released. CHRI understands there is no longer a requirement for
government institutions to update the CAIRS database but this decision should
be reversed and indeed strengthened by amending the Act to enshrine this
requirement.
15. Whistleblower protection: There is only one express reference in the Act to the
Public Servants Disclosure Protection Act. Section 16.5 of the Act provides that
records requested that were created for the purpose of making a disclosure, or
investigation, pursuant to the Public Servants Disclosure Act are exempted from
disclosure under the Act. While section 74 of the Act protects public service
employees from civil proceedings and criminal prosecutions where disclosure is
made in good faith it does not contemplate whistleblower situations. The inclusion of
strong whistleblower protection in the Act is important in order to send a message to
the public and officials that the government is serious about opening up to legitimate
scrutiny. Consideration should be given to renaming section 74 as 74(1) and
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introducing a separate subsection under section 74 that expressly protects
individuals in accordance with the Public Servants Disclosure Protection Act.
*******
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Annex 1: Best Practice Legislative Principles
Notably, in CHRI’s 2003 Report, Open Sesame: Looking for the Right to Information in the
Commonwealth (see enclosed), the RTI team captured the key principles which should
underpin any effective right to information law, drawing on international and regional
standards, evolving State practice, and the general principles of law recognised by the
community of nations. Article 19, an NGO which specifically works on right to information,
has also developed “Principles on Freedom of Information Legislation” which were endorsed
by the United Nations Special Rapporteur in 2000.1 The Organisation of American States2
and the Commonwealth3 - both of which Canada is a member - have also endorsed
minimum standards on the right to information. These generic standards have been
summarised into the five principles below, which I would encourage you to consider when
you finalise your own right to information bill.
Maximum Disclosure
The value of access to information legislation comes from its importance in establishing a
framework of open governance. In this context, the law must be premised on a clear
commitment to the rule of maximum disclosure. This means that there should be a
presumption in favour of access in the objectives clause of any Act. Every member of the
public should have a specific right to receive information and those bodies covered by the
Act therefore have an obligation to disclose information. Any person at all should be able to
access information under the legislation, whether a citizen or not. People should not be
required to provide a reason for requesting information.
To ensure that maximum disclosure occurs in practice, the definition of what is covered by
the Act should be drafted broadly. Enshrining a right to access to “information” rather than
only “records” or “documents” is therefore preferred. Further, the Act should not limit access
only to information held by public bodies, but should also cover private bodies “that carry out
public functions or where their activities affect people’s rights”. This recognises the fact that
in this age where privatisation and outsourcing is increasingly being undertaken by
governments, the private sector is gaining influence and impact on the public and therefore
cannot be beyond their scrutiny. Part 3 of the South African Promotion of Access to
Information Act 2000 provides a very good example.
Bodies covered by the Act should not only have a duty to disclose information upon request,
but should also be required to proactively publish and disseminate documents of general
relevance to the public, for example, on their structure, norms and functioning, the
documents they hold, their finances, activities, any opportunities for consultation and the
content of decisions/policies affecting the public. Section 4 of the new Indian Right to
Information Act 2005 provides a useful model.
1
Hussain, A. (2000) Report of the UN Special Rapporteur on the promotion and protection of the right
to freedom of opinion and expression submitted in accordance with Commission resolution 1999/36,
Doc.E/CN.4/2000/63, 5 April. See also Ligabo, A., Haraszti, M. & Bertoni, E. (2004) Joint Declaration
by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on
Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression.
2
See Organisation of American States - General Assembly (2003) Access to Public Information:
Strengthening Democracy, resolution adopted at the fourth plenary session, June 10 2003,
AG/RES.1932 (XXXIII-O/03).
3
See (1999) Commonwealth Freedom of Information Principles, in Promoting Open Government
Commonwealth Principles And Guidelines On The Right To Know, Report of the Expert Group
Meeting on the Right to Know and the Promotion of Democracy and Development, Marlborough
House, London, 30-31 March 1999.
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An Act should also provide that bodies covered be required to make every reasonable effort
to assist applicants on request. "Every reasonable effort" is an effort which a fair and rational
person would expect to be done or would find acceptable. The use of "every" indicates that
a public body’s efforts are to be thorough and comprehensive and that it should explore all
avenues in verifying the completeness of the response. The burden of proof should be on
the public body to show that it has conducted an adequate search. Section 6 of British
Columbia’s Freedom of Information and Protection of Privacy Act provides a useful model.
In order to support maximum information disclosure, the law should also provide protection
for “whistleblowers”, that is, individuals who disclose information in contravention of the law
and/or their employment contracts because they believe that such disclosure is in the pubic
interest. Whistleblower protection is based on the premise that Individuals should be
protected from legal, administrative or employment-related sanctions for releasing
information on wrongdoing. It is important in order to send a message to the public that the
government is serious about opening itself up to legitimate scrutiny.
Minimum Exceptions
The key aim of any exceptions should be to protect and promote the public interest. The law
should therefore not allow room for a refusal to disclose information to be based on trying to
protect government from embarrassment or the exposure of wrongdoing. In line with the
commitment to maximum disclosure, exemptions to the rule of maximum disclosure should
be kept to an absolute minimum and should be narrowly drawn. The list of exemptions
should be comprehensive and other laws should not be permitted to extend them. Broad
categories of exemption should be avoided and blanket exemptions for specific positions
(e.g., President) or bodies (e.g., the Electoral Commission) should not be permitted; in a
modern democracy there is no rational reason why such exemptions should be necessary.
The law should require that other legislation be interpreted, as far as possible, consistently
with its provisions.
Even where exemptions are included in legislation, they should still all be subject to a
blanket “public interest override”, whereby a document which is presumed exempt under the
Act should still be disclosed if the public interest in the specific case requires it.
Simple, Cheap and Quick Access Procedures:
A key test of an access law's effectiveness is the ease, inexpensiveness and promptness
with which people seeking information are able to obtain it. The law should include clear and
uncomplicated procedures that ensure quick responses at affordable fees. Applications
should be simple and ensure that the illiterate and/or impecunious are not in practice barred
from utilising the law. Officials should be tasked with assisting requesters. Any fees which
are imposed for gaining access should also not be so high as to deter potential applicants.
Best practice requires that fees should be limited only to cost recovery, and that no charges
should be imposed for applications nor for search time; the latter, in particular, could easily
result in prohibitive costs and defeat the intent of the law. The law should provide strict time
limits for processing requests and these should be enforceable.
All public bodies should be required to establish open, accessible internal systems for
ensuring the public’s right to receive information. Likewise, provisions should be included in
the law which require that appropriate record keeping and management systems are in place
to ensure the effective implementation of the law.
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Effective Enforcement: Independent Appeals Mechanisms & Penalties
Effective enforcement provisions ensure the success of access legislation. In practice, this
requires that any refusal to disclose information is accompanied by substantive written
reasons (so that the applicant has sufficient information upon which to appeal) and includes
information regarding the processes for appeals.
While internal appeals provide an inexpensive first opportunity for review of a decision,
oversight by an umpire independent of government pressure is a major safeguard against
administrative lethargy, indifference or intransigence and is particularly welcome where
court-based remedies are slow, costly and uncertain. The fear of independent scrutiny
ensures that exemption clauses are interpreted responsibly and citizens’ requests are not
unnecessarily obstructed. While the courts satisfy the first criteria of independence, they are
notoriously slow and can be difficult to access for the common person. As such, in many
jurisdictions, special independent oversight bodies have been set up to decide complaints of
non-disclosure. They have been found to be a cheaper, more efficient alternative to courts
and enjoy public confidence when they are robustly independent, well-funded and
procedurally simple.
Best practice supports the establishment of a dedicated Information Commission with a
broad mandate to investigate non-compliance with the law, compel disclosure and impose
sanctions for non-compliance. Experience from a number of Commonwealth jurisdictions,
including Canada, England, Scotland and Western Australia, has shown that Information
Commission(er)s have been very effective in raising the profile of the right to information and
balancing against bureaucratic resistance to openness. Of course, there are alternatives to
an Information Commission. For example, in Australia, the Administrative Appeals Tribunal
has appeal powers and in New Zealand and Belize the Ombudsman can deal with
complaints. However, experience has shown that these bodies are often already overworked
and/or ineffective, such that they have rarely proven to be outspoken champions of access
laws.
The powers of oversight bodies should include a power to impose penalties. Without an
option for sanctions, such as fines for delay or even imprisonment for wilful destruction of
documents, there is no incentive for bodies subject to the Act to comply with its terms, as
they will be aware that the worst that can happen is simply that they may eventually be
required to disclose information.
In the first instance, legislation should clearly detail what activities will be considered
offences under the Act. It is important that these provisions are comprehensive and identify
all possible offences committed at all stages of the request process – for example,
unreasonable delay or withholding of information, knowingly providing incorrect information,
concealment or falsification of records, wilful destruction of records without lawful authority,
obstruction of the work of any public body under the Act and/or non-compliance with the
Information Commissioner’s orders.
Once the offences are detailed, sanctions need to be available to punish the commission of
offences. International best practice demonstrates that punishment for serious offences can
include imprisonment, as well as substantial fines. Notably, fines need to be sufficiently large
to act as a serious disincentive to bad behaviour. Corruption – the scourge that access laws
assist to tackle – can result in huge windfalls for bureaucrats. The threat of fines and
imprisonment can be an important deterrent, but must be large enough to balance out the
gains from corrupt practices.
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Monitoring and Promotion of Open Governance:
Many laws now include specific provisions empowering a specific body, such as an existing
National Human Rights Commission or Ombudsman, or a newly-created Information
Commissioner, to monitor and support the implementation of the Act. These bodies are often
empowered to develop Codes of Practice or Guidelines for implementing specific provisions
of the Act, such as those relating to records management. They are usually required to
submit annual reports to parliament and are empowered to make recommendations for
consideration by the government on improving implementation of the Act and breaking down
cultures of secrecy in practice.
Although not incorporated in early forms of right to information legislation, it is increasingly
common to include provisions in the law itself mandating a body to promote the Act and the
concept of open governance. Such provisions specifically require that the government ensure
that programmes are undertaken to educate the public and the officials responsible for
administering the Act.
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Annex 2: Arguments in support of right to information
When presenting any Bill in Parliament, you may wish to draw on some common arguments
as to why the right to information is so crucial to democracy, development and human rights.
In fact, more than fifty years ago, in 1946 the United Nations General Assembly recognised
that “Freedom of Information is a fundamental human right and the touchstone for all
freedoms to which the United Nations is consecrated”.4 Soon after, the right to information was
given international legal status when it was enshrined in Article 19 of the International
Covenant on Civil and Political Rights which states: “Everyone has the right to freedom of
opinion and expression; this right includes freedom to hold opinions without interference and
to seek, receive and impart information and ideas through any media and regardless of
frontiers” (emphasis added). Over time, the right to information has been reflected in a number
of regional human rights instruments, including the American Convention on Human Rights5.
This has placed the right to access information firmly within the body of universal human rights
law.
In addition to the overarching significance of the right to information as a fundamental human
right which must be protected and promoted by the state, the following arguments in support
of the right should also be recalled when advocating the right to parliamentarians and other
key stakeholders:
It strengthens democracy: The right to access information gives practical meaning to the
principles of participatory democracy. The underlying foundation of the democratic tradition
rests on the premise of an informed constituency that is able thoughtfully to choose its
representatives on the basis of the strength of their record and that is able to hold their
government accountable for the policies and decisions it promulgates. The right to information
has a crucial role in ensuring that citizens are better informed about the people they are
electing and their activities while in government. Democracy is enhanced when people
meaningfully engage with their institutions of governance and form their judgments on the
basis of facts and evidence, rather than just empty promises and meaningless political
slogans.
It supports participatory development: Much of the failure of development strategies to date is
attributable to the fact that, for years, they were designed and implemented in a closed
environment - between governments and donors and without the involvement of people. If
governments are obligated to provide information, people can be empowered to more
meaningfully determine their own development destinies. They can assess for themselves
why development strategies have gone askew and press for changes to put development
back on track.
It is a proven anti-corruption tool: In 2004, of the ten countries scoring best in Transparency
International’s annual Corruption Perceptions Index, no fewer than eight had effective
legislation enabling the public to see government files. In contrast, of the ten countries
perceived to be the worst in terms of corruption, only one had a functioning access to
information regime. The right to information increases transparency by opening up public and
private decision-making processes to scrutiny.
It supports economic development: The right to information provides crucial support to the
market-friendly, good governance principles of transparency and accountability. Markets, like
governments, do not function well in secret. Openness encourages a political and economic
4
UN General Assembly, (1946) Resolution 59(1), 65th Plenary Meeting, December 14.
See Art. 13(1), American Convention on Human Rights, 1969, Costa Rica, OAS Treaty Series No.
36, 1144 U.N.T.S. 123.
5
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environment more conducive to the free market tenets of ‘perfect information’ and ‘perfect
competition’. In turn, this results in stronger growth, not least because it encourages greater
investor confidence. Economic equity is also conditional upon freely accessible information
because a right to information ensures that information itself does not become just another
commodity that is corralled and cornered by the few for their sole benefit.
It helps to reduce conflict: Democracy and national stability are enhanced by policies of
openness which engender greater public trust in elected officials. Importantly, enhancing
people’s trust in their government goes some way to minimising the likelihood of conflict.
Openness and information-sharing contribute to national stability by establishing a two-way
dialogue between citizens and the state, reducing distance between government and people,
thereby combating feelings of alienation. Systems that enable people to be part of, and
personally scrutinise, decision-making processes reduce citizens’ feelings of powerlessness
and weakens perceptions of exclusion from opportunity or unfair advantage of one group over
another.
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