Requiring government institutions to proactively publish information should not be part of the Access to Information Act.
While the Information Commissioner’s article “The Federal Accountability Act and the Access to Information Act – long on promises, short on results” offers helpful direction, it contains a few misleading recommendations about open government that need to be removed from discussions about reforms to Canada’s access law.
As an academic librarian I have a commitment to access to information. While open, transparent government is certainly something I endorse, it should not be conflated with freedom of information (FOI) legislation.
While I support most of the recommendations in the Information Commissioner’s special report to Parliament, three of them are dangerous to FOI legislation. Chapter 6 of the commissioner’s report calls on Parliament to require government institutions proactively to publish financial information, public interest information and information aligned with the Directive on Open Government. These do not have a place in the Access to Information Act but rather belong in separate legislation.
To understand why, we have to dig into history. On April 21, 1766 (exactly 250 years before Policy Options published the commissioner’s article), Swedish parliamentarians debated the central issue of what would become the world’s first FOI law: government censorship.
At the time, the Swedish parliamentarians recognized that government censors inevitably would be biased toward publishing texts that favoured government interests, even at the expense of the national public interest. To minimize the problem of government withholding (i.e., censoring) unpublished documents, the Swedish Parliament allowed citizens to decide what information they could access.
This is why the Information Commissioner’s recommendations for the government to include publication schemes in the Access to Information Act are at odds with the spirit of FOI legislation. By letting governments decide what can be published, publication schemes position the government as a censor of information within legislation that is about limiting censorship.
This is not to suggest the government does not have a duty to publish information. It does. Rather, this duty should be set out in legislation that is entirely separate from the Access to Information Act.
Confusing the duty to publish information with access to information comes with problems. First, on its own, open government risks enhancing censorship under the appearance of transparency, what some call faux transparency.
Second, embedding publication schemes in FOI laws puts a burden on FOI oversight bodies. In the United Kingdom, section 19 of the Freedom of Information Act 2000 gives every public entity a responsibility to publish information. The UK Information Commissioner must monitor over 17,000 public entities for compliance with their duty to publish.
In November 2009, the UK Information Commissioner’s Office (ICO) published an audit of the publication schemes of 30 public authorities in the central government sector. They found more than 25 percent did not comply with their publishing requirements, while the remainder complied in a piecemeal fashion. This sort of monitoring diverts resources away from protecting the rights of individuals seeking unpublished information to supporting governments to publish information.
To avoid any confusion, separate legislation on open government, which functions alongside the Access to Information Act, is needed. Let’s call it the “publication of government information act.” Its purpose would be to articulate the expectations of governments regarding the publication of information for Canadians. But enhancing the Access to Information Act is still needed to prevent censorship and increase government accountability.
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