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Freedom of Information (FOI)

TRANSPARENCY FOR THE PUBLIC GOOD

The protection of personal privacy is attracting considerable attention in Western democracies because of the ease with which information circulates on the Internet and the adoption of potentially intrusive new security measures to address international terrorism. In contrast, less attention is paid to freedom of information, but this does not mean that FOI is not of equal importance. It is recognized worldwide as a crucial component of a democratic state because transparency helps to expose corruption, ensures due process in law, and encourages the citizen engagement that is central to political participation. For newly emerging democracies, the concept of “open government” challenges previously accepted notions that the interests of society as expressed through the power of the state take precedence over the interests of individual citizens. These countries often use access to information legislation as a means for their societies to both confront and reconcile past human rights abuses. The ability to access information, however, necessitates the restriction of privacy. While protection of privacy is a critical component of safeguarding the well-being of the individual, access to information is a critical component of the accountability regimes that underpin functioning democratic societies with market economies.

This chapter’s focus is on FOI as it relates to citizens and their governments, because these accountability regimes are for the most part confined to accessing information held by the state. The chapter begins with a discussion of the relationship between transparency and good governance, and overviews the development of FOI regimes globally. It then moves to an analysis of how transparency is operationalized in legislation and administrative practice in the public sector, with a particular focus on the administrative structures and processes that impede the adoption of the culture of openness. While the focus of this chapter is on transparency and accountability in the public sector, much of what is said in this regard can be applied to consumers who obtain goods and services from private or non-profit entities. Corporate and non-profit leaders do not have to worry about being re-elected, nor do customers/clients have the same rights of access to information as citizens. But corporations and non-profits still have to maintain the confidence of their clients and their shareholders. In addition, they must abide by the regulatory framework that governs their industry. Accountability is key to good managerial practices, and as we have seen in previous chapters, there is a close relationship between transparency and accountability.

What ultimately separates the public from the private and non-profit sectors is that the public sector’s purpose is to promote societal interests through the provision of certain goods and services that are deemed too important to be left to the private sector. Citizens cannot “opt out” of being a citizen unless they move to another country and renounce their citizenship. While an unhappy customer can stop buying a product, an unhappy citizen does not have the right to stop paying taxes. As such, a citizen has certain rights vis-à-vis the state that a customer does not have vis-à-vis the business that she patronizes. Currently, access to information held by organizations in the private and non-profit sectors is limited to information pertaining to the individual making the request. In contrast, legislation relating to requests for access to information held by the state allows for far more expansive requests, as citizens have the right to know how the public interest is being defined and how state resources are being allocated. Predictably, this raises an important question to keep in mind when reading the following discussion of FOI: How should the desire of an individual, business, or other organization to keep information private be reconciled with the claim that releasing the information is in the public interest?

There are two components that underpin the right to FOI that together define the relationship citizens have with their government: (1) individuals should know what personal information is held; and (2) they should have the ability to “see” what the government is doing in order to hold it to account. The first component relates to the protection of an individual’s right to privacy. In order to protect this right, citizens need to know what information the government holds that pertains to them personally, and they should be able to correct it or request that extraneous information be deleted. The ability to exercise some control over information that is in someone else’s possession allows individuals a degree of sovereignty over their public identity. Because this form of access is integral to an individual’s privacy rights, access and privacy should not be conceived as always in opposition to one another. The second component concerns the ability of citizens to access information that does not pertain to them personally; it provides the focus of this chapter.

The reason that citizens should have access to government information is simple: they need information in order to exercise their democratic rights in a responsible manner, and as taxpayers, they paid for its collection and retention. The types of information in which citizens might have an interest are as varied as their purposes for requesting it. Applications for access to information can be made at all levels of government. For example, at the municipal level, a reporter who became ill after an evening dining out requested health inspection reports from Toronto Public Health for all city restaurants for the previous two years. This led to a year-long series of newspaper stories in the Toronto Star on the safety of city food establishments. In response to the ensuing “Dirty Dining” scandal, Mayor Mel Lastman ordered a four-month crackdown on restaurant inspections that resulted in a hundred charges being laid and sixty restaurants closing.¹ At the provincial level, a citizen in British Columbia was concerned about the reorganization of the province’s ferries and asked the premier’s office for all the background reports and analysis that contributed to the cabinet decision. He successfully argued that this decision had been the focus of much public debate and that the public was concerned that government decisions were increasingly being undertaken without sufficient public scrutiny, particularly with respect to government outsourcing and privatization of services that require significant expenditures of public funds.² At the federal level, a reporter from the Globe and Mail made an Access to Information request to Public Works and Government Services Canada for records regarding the money that had been spent on the federal government sponsorship program since the 1994–95 fiscal year. This $40-million-a-year program was supposed to support cultural and sporting events but in fact comprised an aggressive advertising campaign in Quebec to promote Canadian unity. It was eventually revealed that, in addition to providing government funding for commercials, hot air balloons, and festivals in Quebec, advertising firms were overcharging the federal government for their services and in turn making donations to the Liberal Party of Canada. These revelations resulted in the so-called Adscam scandal, and in the next election the formidable and long-serving Liberal government was reduced to a minority in Parliament.³ While these examples are drawn from three different levels of government, they all demonstrate how an individual request for information can be made in the name of “the public interest”— specifically, in order to hold government to account.

The determination of whether the right to access is deemed more important than the right to protection of privacy is about the relative importance of group rights versus individual rights, the public interest versus private autonomy. It should be noted, however, that “the public interest” is a contested concept. An individual or a group of individuals might make claims for information in the name of “the public interest” while the state might deny access based on claims of protecting “the public interest.” It is thus more useful to think of claims for access to and protection of information as products of competing societal interests struggling to define what they perceive to be the public interest.

The ability of an individual to retrieve information held by the government is fundamental to the legitimacy of the state. That is, in a democracy leaders lead because others are prepared to follow them. We give leaders authority by electing or appointing them to a particular office using accepted practices that are clearly delineated. We trust them to act on our behalf because they have convinced us in an election that their ideas and their character make them deserving of the responsibility that we give them. In a perfect world, this trust is based on a continual assessment of their performance in office. The politicians who shape government are not only responsible for their own actions, they take responsibility for the policy decisions made by their party and for the actions of public servants who implement government policy. Periodically we are asked to renew the mandates of our elected representatives; we either re-elect them or choose someone else to represent us. We monitor these decisions in light of the alternative choices that could have been made. While accountability is less direct in other sectors, leaders who lose the confidence of employees, boards of directors, or clients often find it difficult to maintain their positions of authority.

Leaders lose legitimacy and eventually authority when their followers become disenchanted with their actions, but if unpleasant truths or contentious decisions are kept from the electorate, the electorate will remain blissfully ignorant. Leaders will therefore continue to stay in power even if they are doing things that are not promoting the “public good,” however the public good is defined. So, for example, FOI allows citizens to request information regarding the travel and entertainment expenses of politicians and bureaucrats. This may reveal that the taxpayer is paying for visits to strip clubs or for the use of escort services. FOI might also reveal that government contracts are consistently awarded to family members of cabinet ministers. The ability to obtain information helps us to ensure that leaders are exercising the power we have given them in an appropriate manner, one that is consistent with the collective wishes of the electorate. In this case, “an appropriate manner” means a manner that falls within the parameters of the authority vested in the offices these leaders occupy. It also refers to a manner that is consistent with what the majority of the electorate believes is the best course of action with respect to policy choices. But citizens can make this determination only if they have access to information regarding decisions that have been made or if opposition parties or the media have access to it and are thus able to bring issues to the public’s attention.

The preceding observations are not limited to a particular nation-state; they also have relevance to international relations. Transparency has often been associated with the twentieth-century notion that openness will foster international stability and peace. This idea arose in reaction to the secret treaties that were signed prior to the outbreak of World War I that many pointed to as the cause of the war. While it is acknowledged that privacy has a place in the negotiating process, it is now accepted that the results of negotiations should be open and accessible. As the world became more economically integrated after World War II, international bodies began asking for statements of account for audit purposes. These are referred to as “compliance information regimes.”⁴ So, for example, countries must submit information about changes in trade policies to the World Trade Organization. Arms control or disarmament treaties require verification that the signatories are actually doing what they say they are doing.

Increasingly, transparency is also being demanded in financial markets. Global financial transparency helps to expose terrorist networks, arms dealers, drug traffickers, tax evaders, and money laundering. But the benefits can be more mundane; transparency also facilitates the production of comparable corporate information that is useful for investors and their agents as they engage in securities trading. Since the 1980s, the ideology of “small government” and limited government intervention in the marketplace has ruled the day. Recent financial scandals and the 2008 stock market plunge precipitated by the sub-prime mortgage crisis in the US has lent credence to those who claim that complex investment vehicles must be put under tight regulatory scrutiny.⁵ These events also support the view that transparency (in the form of more audit requirements and supervision as well as greater regulatory integration) would improve risk management. As with accountability, the desire for transparency is thus not confined to governments: rules have been developed to create access to information regimes both in the private and the public sector. It can be expected that access to information will soon extend its reach to the non-profit sector, particularly given the size and influence of many international non-governmental organizations.

At the outset of this section, it was argued that the ability to access information is critical for good governance. It also was asserted that the determination of whether or not information should be released is the result of competing interests, which often pit a collective right — namely, the right to access information in the interest of the public good — against the individual right to keep information private. As with privacy, the recognition that information sharing is critical to democratic societies is not a new phenomenon. The next section discusses the evolution of FOI regimes and their regulative counterpart: access to information legislation.

THE MARCH TOWARD REGULATION

Commentators point to Sweden’s 1766 Freedom of the Press Act as the world’s first attempt to secure the right to disseminate information through the auspices of freedom of expression.⁶ Given that this act placed restrictions on criticism of the state, it would take another fifty years for the Swedish act to be amended to such a degree that it actually could be described as protecting freedom of expression. More recently, it was at the global governance level that the desire for free-flowing information was articulated. On 14 December 1946, during its first session, the United Nations General Assembly passed a resolution calling for an international conference on freedom of information. Resolution 59 (1) opened: “Freedom of information is a fundamental human right and is the touchstone for all freedoms to which the United Nations is consecrated.” Two years later, the Universal Declaration of Human Rights was adopted. Article 19 affirms “the right to seek, receive and impart information and ideas through any media and regardless of any frontiers.”⁷ Access to information can thus be seen as a natural progression emanating from those states that embrace freedom of expression and free presses.

The constitutions of many former eastern European and Latin American countries provide explicit constitutional protection of the right to information. With the exception of Sweden, Norway, New Zealand, and Portugal, the constitutions of most liberal democracies in the industrialized north do not, although the right to access has been inferred in a variety of court decisions. Similarly, the European Convention on Human Rights (1953) does not provide an explicit right to access to information, but it does contain other provisions through which access can be obtained. In McGinley and Egan v. the United Kingdom, the European Court of Human Rights ruled that under Article 8 (family and private life) members of the British forces who witnessed experimental atomic explosions had a right to information pertaining to the effects of those explosions on the health of those involved.⁸

Sweden and Finland passed the first modern Access to Information Acts in 1949 and 1951 respectively. The United States followed in 1966 with its own legislation. In most countries, the catalyst for the adoption of a FOI act is not democratic enlightenment but political partisanship or scandal. In the case of the US, a Democrat-dominated Congress sought information about a Republican executive. Later, the act was strengthened because of the Watergate break-in, eventually leading to the resignation of President Nixon. Nonetheless, the 1960s was a decade wherein a variety of American civil society groups demanded rights (civil, women’s, and consumer, to name just a few) and the importance of freedom of the press to democracy was recognized. In the early 1970s, Denmark, Norway, the Netherlands, and France adopted access to information legislation. Australia and New Zealand followed suit in 1982; Canada’s law came into effect in 1983.

A second wave of countries passing access to information acts occurred with the fall of communism; by the 1990s having such legislation was considered fundamental to democratic governance and became an international norm endorsed by various supranational bodies. Ukraine and Hungary were the first countries from the former Soviet block to pass a FOI law in 1992; most of the central and eastern European countries now have access laws. The adoption of access to information regimes in newly emerging democracies that are trying to reconcile a past filled with human rights abuses poses difficult questions, given the files on citizens that were compiled by secret police and the fates that often befell citizens as a result of those files. Security forces acquired much of the damning information from friends, neighbours, or relatives of the person profiled. Some fear that allowing open access to these files will cause major damage to friendships and to families. There are many different ways that countries have approached this issue, from completely open access to providing limited access for the purposes of preventing those involved in human rights abuses from serving in the current government. It is interesting to note that three of the four former eastern bloc countries that were included in the Open Society Justice Initiative’s fourteen-country study of access (Bulgaria, Romania, and Armenia) consistently rank as top performers in compliance, beating out such countries as France and Spain.⁹

Like the former Communist countries, many Latin American nations are grappling with human rights issues in connection with the gruesome fates of those who “disappeared” during the era of military dictatorships in the mid-twentieth century. These unfortunates were tortured and murdered by security forces, and their children were often handed over to military families for adoption, only to discover their true identities many years later, as adults. While Mexico was not a military dictatorship during this era, it has had similar issues of human rights abuses. It passed its access law in 2002, the same year President Fox ordered all files that detailed human rights abuses to be declassified.¹⁰

Mexico continues to grapple with serious human rights abuses, many in connection with the maquiladoras, manufacturing and export assembly plants that lie along its border with the United States. In the northern borderlands of Chihuahua, hundreds of the poor women and girls employed in these sweatshops have been raped and murdered, their bodies found mutilated; hundreds more have simply disappeared. The drug wars — armed conflicts among Mexican drug cartels, which supply illicit drugs to the United States — have also contributed to Mexico’s poor track record in the area of human rights. Law enforcement officials are criticized for being, at best, indifferent and inept and, at worst, corrupt and complicit in drug trafficking and other criminal activities. Those who attempt to determine who is perpetrating the crimes may find themselves becoming victims. Recently, representatives of the United Nations and the Organization of American States joined Mexico’s National Human Rights Commission in criticizing the government for failing to protect journalists against corrupt public officials and drug traffickers, especially along its northern border. Attacks, murders, and disappearances have earned Mexico the reputation as one of the most dangerous places in the world for a reporter to work.¹¹ Security issues are also a problem for law enforcement officials working to combat the drug cartels: in December 2010 the last remaining police officer who served the border town of Guadalupe disappeared.¹²

In Mexico and elsewhere, the hope that access to information laws would help in the fight against government corruption was a significant factor in their adoption. Belize, Trinidad and Tobago, Jamaica, Columbia, and Peru already have access legislation. The most recent South American country to pass FOI legislation is Chile; this followed a successful 2006 court challenge by a Chilean environmental group claiming that the American Convention on Human Rights guarantees a right of access to information. The international tribunal’s ruling sets a precedent for other courts that access to government-held information is a right.¹³

In Africa, South Africa, Zimbabwe, Angola, and Uganda now have access legislation. There is a difference, however, between having such a law and actually using it for its intended purpose. For example, Zimbabwe claims to have modelled its Access to Information and Protection of Privacy Act (2002) after Canada’s, but its act has been cited as the source of increased power of the government over the press and the suppression of free speech. Ironically, as a consequence of Zimbabwe’s act, independent newspapers have been shut down and journalists have been jailed. Paraguay and Serbia’s laws also have been criticized for restricting free speech and the dissemination of information.¹⁴

An interesting contrast is the case of South Africa, whose act began as severely oppressive but has evolved into the world’s strongest and most progressive — at least on paper. Under the apartheid regime, the government controlled all public information and the channels through which that information flowed. Like Zimbabwe’s act, South Africa’s Protection of Information Act of 1982 worked directly counter to the spirit of FOI legislation in that it gave the government the power to regulate information that it regarded as “sensitive.” It enabled the government to shut down a number of newspaper outlets and to curtail the publication of any information that the government deemed inappropriate for mass consumption. As one critic commented:

The information made available for public consumption was simply meant to brainwash the public and also entrench its political agenda of discrimination, segregation and separate development to create an uninformed, ill-informed and unenlightened society. The ultimate intention was simply to safeguard its unpopular and infamous regime.¹⁵

The mid-1990s saw a complete reversal in South Africa when the right to access records held by both private and public bodies was enshrined in Section 32(1) of the Constitution of the Republic of South Africa Act of 1996. Constitutional protection of the right to access information is unusual, and it signals the importance that South Africa places on FOI for building a democratic nation that embraces equality. The subsequent passage of the Promotion of Access to Information Act of 2000 operationalized this right.

The following year, South Africa passed another law that linked FOI and human rights. This law was the result of four years of lobbying by the Open Democracy Campaign group, a coalition of human rights, legal rights, social justice, environmental, church, and labour groups. The coalition argued that FOI is critical for ensuring corporate and government accountability. Its website cites the observations of the 1998 winner of the Nobel Prize for economics, Amartya Sen, who argues that “information is crucial to development and the prevention of disaster.” As Sen points out, democracies that guarantee freedom of the press have never suffered through famine: “A free press and the practice of democracy contribute greatly to bringing out information that can have an enormous impact on policies for famine prevention. . . . A free press and an active political opposition constitute the best early warning system a country threatened by famine could ever have.”¹⁶ While South Africa is moving in the right direction in its quest for administrative openness, it should be noted that implementation of the law is quite another story: South Africa rated quite poorly in a fourteen-country survey on request compliance conducted by the Open Society Justice Initiative. While laws can be passed and even enshrined in constitutions, in order to change an organizational culture from one of secrecy to one of openness public officials must be adequately trained in implementing those laws.¹⁷

The uncovering of systemic corruption and government waste over a twenty-year period provided the impetus for the Japanese FOI law, which took effect in 2001. A dozen other Asian countries also have similar laws, including Hong Kong (1995), South Korea (1998), Pakistan (2002), India (2005), Taiwan (2005), and China (2008). For developing nations, part of the incentive for passing a FOI law is that countries wishing to receive money from supranational organizations like the World Bank or non-governmental organizations have to comply with the regulatory framework laid out for them. Access to information is part of this regulatory framework.

The UK (2005), Switzerland (2006), and Germany (2006) were laggards among the world’s democracies in adopting FOI acts. The passing of access legislation garnered little attention from the German media, perhaps because access to the files held by the East German secret police had been opened to the public over a decade earlier. In contrast, the passing of the UK legislation was accompanied by much fanfare, as it was considered a major victory by its advocates. They argue that the legislation will provide a strong antidote to the “culture of secrecy” that they claim dominates UK public affairs. As in many other countries that adopted FOI legislation, the hope is that increased transparency will result in the restoration of public trust in government.

By 2006, over fifty states had access to information legislation,¹⁸ and another dozen were working on it. But more than one hundred countries still do not have laws, including countries such as Brazil, Libya, Democratic Republic of Congo, Vietnam, North Korea, Venezuela, Cuba, and all of the Arab Middle East with the exception of Jordan. Russia, Argentina, Nigeria, and Kenya are working toward drafting legislation. Unfortunately, the 2001 attacks on the World Trade Center and the Pentagon had a dampening effect on the march toward greater transparency. Just as a spate of countries were embracing the concept of openness in government and implementing their own legislation, the United States was once again distinguishing itself as a leader. This time, however, it separated itself from the pack by withdrawing its commitment to both FOI and protection of privacy. Only six weeks after the terrorist attacks, the USA Patriot Act was passed, effectively trumping transparency and privacy protection values with measures aimed at enhancing security. These actions caused a ripple effect throughout the world, with many other countries passing legislation that followed the lead of the USA Patriot Act. While the commitment to FOI appears to be waning, no country has actually repealed its legislation.

Though the context and details of access legislation varies among countries, the general outline remains fairly similar. Similarly, since World War II there has been a steady march worldwide toward passing access legislation. Legislation that promotes transparency, however, does not guarantee openness. The next section describes the basic characteristics of a FOI regime and the challenges inherent in implementing “open-government” administrative practice.

ADMINISTRATIVE PRACTICE:
CHALLENGES TO THE CULTURE OF OPENNESS

Access regimes worldwide share similar assumptions and features. The basic premise is that governments do not “own” information; they are simply its custodians. The information ultimately belongs to citizens; FOI articulates citizens’ rights to it in the absence of compelling reasons not to grant access. These rights are set out in laws and usually apply only to citizens or permanent residents of any particular country. Access regimes provide clear and reasonable timelines for providing this information. As such, the laws impose a duty of compliance on the part of public officials. There are exceptions that might prevent disclosure, but these must be clearly articulated in the law and it is up to the public body to justify the exemption. Typically, exemptions seek to protect public welfare or safety, commercial secrecy, or individual privacy. In cases where there is an identifiable harm that will result from disclosure, the harm must outweigh the public interest. In case of a dispute, an independent arbiter will make the decision regarding whether information should be disclosed or not. In recent years, FOI has been extended in countries such as South Africa to cover private organizations that provide public services.¹⁹

In a federal system, each level of government has its own access legislation that applies to its various departments. In both federal and unitary systems,²⁰ local government bodies are covered by the same acts that cover the government that delegates authority to these bodies. Access legislation varies, however, with respect to its application to regulatory boards, commissions, panels, agencies, and government-owned corporations. Critics of exemptions to such legislation argue that access laws should apply to any organization that serves the public interest and is in large part funded by the government. There is, however, no definitive formula for defining what constitutes “the public interest” or at what level of funding a government should be assumed to be influencing organizations to such a degree that they should be considered an extension of that government. While government-funded corporations can legitimately claim that business secrets must be protected from competitor scrutiny, critics complain that the problem of releasing information that might play into the hands of the competition could be handled by specific as opposed to blanket exemptions.

Limiting access to information can also be crucial to the workings of government itself. There are good reasons for a veil of secrecy shrouding government caucuses and, in particular, decision making at the level of senior committees or the cabinet. Secrecy can, for example, allow decision makers greater room to manoeuvre when negotiating deals. Restricting access to certain information can also aid consensus building. This is particularly important in parliamentary systems, which rely in large measure on party solidarity. Once a bill is before parliament, all the members of a party are expected to vote the same way on the bill. If a majority of party members vote against bills proposed by their own government, the government may face a vote of non-confidence and, should it lose such a vote, be forced to resign. This can encourage party leaders to keep potentially sensitive information to themselves and can have the net effect of inhibiting open debate in parliament among members of the same party. Instead, debates happen behind closed doors, and the face that is shown in parliament, and to the public, is one of solidarity. In contrast, in republican systems, such as that of the United States, party discipline is much weaker. Although, in any system, political parties are seldom eager to expose their divisions in public, congressional representatives are held more individually accountable for the ways in which they vote: they feel a greater pressure to vote according to the wishes of their constituents, as opposed to the wishes of their party. Prominent individuals and special interest groups can thus have considerable influence on how a representative votes. Members of Congress are, moreover, expected to defend their own positions in open debate; they cannot shield themselves behind the argument that they must support their party’s platform on an issue. The resulting lack of consensus can also make it more difficult to get a bill successfully through Congress, but it also produces a degree of transparency in the legislative process that is not generally found in parliamentary systems.

In the case of a dispute over a bureaucratic decision to withhold information, an independent third party passes judgment. This could be a court, a panel, the public service ombudsman, or a commissioner, whose duties may be limited to issues of access or may include both access and privacy. Some FOI commissioners serve as arbiters who have the power to issue orders. Other commissioners act in the capacity of an administrative ombudsman: they investigate a complaint and then issue a recommendation to the head of the institution that is the subject of the complaint. While some might argue that a commissioner who can only advise the government to do something lacks clout, in reality the commissioner’s advice, like that of an ombudsman, carries significant moral weight, which can be quite forceful when combined with the power of the press to disseminate the details of the conflict. Moreover, the role of an advisor, as opposed to that of an arbiter whose decisions are binding, opens the door to a more co-operative relationship with public servants, who are more likely to work with a commissioner to find a solution that will satisfy those who lodged the complaint. Either way, access commissioners’ powers of investigation are considerable: they typically cannot be denied access to a record, and interfering with an access investigation is considered a criminal offence.

But a regulatory regime does not guarantee that a culture of openness will replace a culture of secrecy. Passing new laws designed to ensure access to information and protection of privacy may do more harm than good if those who develop and implement new compliance policies and procedures use them for nefarious purposes or, as is more often the case, do not have a sound understanding of the fundamental objectives underlying access and privacy legislation. The end result can be the development of absurd access policies that reflect the defensive posture of the unsure, who instinctively default to the position of refusing a request for information. For example, some universities require the coordinators of academic programs to seek permission from the registrar in order to obtain access to lists of students that these administrators need to perform their jobs. Public trustees may be denied information by their counterparts in other provinces, information that would enable them to locate relatives of deceased people — despite the fact that few people would object to being contacted by a trustee if they are entitled to receive money from an estate. Public health authorities have refused to tell parents whether or not paramedics gave a child a tetanus shot while providing first aid at the scene of an accident. Not only do such overly rigid interpretations of access policy undermine administrative efficiency, but they can also have very unfortunate consequences for people who need access to information but cannot get it in a timely fashion.

Misguided interpretations of the law and its underlying principles are not, however, the only reason that requests for information are sometimes denied. Unfortunately, as the implementation of FOI laws becomes routinized, so too does the ability of officials to sidestep the laws and to justify their actions for doing so. One could even speculate that conscious efforts to suppress information have contributed to the malaise currently affecting liberal democracies, in the form of declining trust in government and citizen disengagement.²¹ Governments everywhere are straining under multiple burdens: increasing loads of debt, the complexity of governance, and global forces that increasingly work to limit the power of the individual state. Special interest groups, journalists, opposition politicians, and others have become adept at using FOI laws to access information that will help them further their own agendas. In response, government officials, seeking to defend the status quo and safeguard their positions, may attempt to restrict access, although they might take exception to the idea that they are simply trying to “hide” information from citizens. From their perspective, they are protecting what they regard as the public good from those who seek information in order to pursue goals that, in official eyes, may not serve the interests of the majority. Ultimately, however, the default should be to bring the debate out into the open, where all parties have an opportunity to state and defend their positions.

As has been well documented by Alasdair Roberts, organizations have a great capacity to resist change and maintain the status quo, especially with respect to implementing access to information rules.²² This can be done through direct challenge or through passive resistance that effectively diminishes the impact that FOI laws have in practice. Transparency requirements can affect record keeping in a number of ways. They can, for example, encourage people who control information and make decisions to be overly cautious with respect to what they commit to paper. There is no right to information that is not contained in a written record. Thus, one of the fundamental tenets of a functioning bureaucracy may be obviated: a paper trail that allows an observer to determine on what basis a decision was taken. As Roberts notes, this trend is evident within the Canadian public service. Whereas in the past public servants wrote notes, now there is a tendency to keep written communication to a minimum so as to reduce the material available that someone might legally request — material that could be “FOIPed.”

If it is known that information will be publicly available, there is a tendency to be more circumspect with respect to what is said and, in particular, to what is written down. An interviewer in a public sector hiring process will not likely commit to paper that a candidate’s mannerisms, miniskirt, and revealing neckline gave her the appearance of someone applying for a job at a strip club rather than as a policy analyst. Instead, a vague reference to “professionalism” might be made. Similarly, a professor writing a student’s letter of recommendation for a publicly funded scholarship is unlikely to note that the applicant has serious anger management issues that might pose a danger to faculty and other students. Instead of a candid assessment, the professor is likely to provide subtle clues that something is amiss that will hamper academic success. Sparse and cryptic note taking is attributable not only to a conscious decision to minimize what FOIPed notes can reveal, it is also a result of the increased pace, volume of written records, and complexity of public management that has not been met with a commensurate increase in resources. There is danger that a gap will emerge between the formal decision-making process that is duly noted in a written record and the undocumented, informal decision-making process that arguably becomes more important. This is not to say that there is never any type of record of this decision making; it might be contained in numerous email strings. What may be missing, however, is a summative record that explains how and why the decision was made.

Other administrative practices that diminish transparency are not followed consciously. This is particularly evident with respect to inward transparency, specifically, the ability of the person outside an organization to navigate its administrative structure. Email has changed the nature of communications — it is now more informal than before. This can be seen in the change from the use of official memos done in triplicate with names, titles, and departments duly noted. Now a request to an organization is often answered by email or by a form letter that is not signed by the sender. If it is signed, it might contain a first name, but frequently senders do not bother to include their last name, their position, or their contact information. A phone call to an office is handled by an automated answering system, and it can be very difficult to navigate to the appropriate place in order to talk to a “real” person. This is particularly frustrating for a requestor of information who may be told that the department they have contacted does not have the information in question but is not then directed to the appropriate place. The net effect of these administrative practices is to decrease transparency and obscure the lines of accountability.

Perhaps the biggest indirect challenge to transparency is attributable to a lack of resources. Legislatures may pass laws, but not much is likely to change unless a considerable sum of money is dedicated to the implementation of the new laws. Public administrators need to be trained not only in the basic principles of FOI but also in the processes and procedures for dealing with access requests. Without this training, administrators will default to the “keep it a secret” position. In its fourteen-country study, the Open Society Justice Institute found that even in countries with FOI laws, 38 percent of requests were simply ignored. Of the requests that were denied in writing, 60 percent were refused for reasons that were not recognized in law. The study also offers numerous examples of arbitrary practices that thwart efforts to access information, such as security guards denying someone entry into the building where an access request must be filed or public officials refusing to take a request from a person simply because, in their estimation, the person does not need access to the information.²³ Clearly, even the most well-designed regimes will fail if inadequate resources are put into the professional development of those who are expected to implement the new rules.

Other challenges to transparency are more direct, such as destroying or falsifying records. These events typically come to light as high-profile scandals such as the tainted blood affair in Canada in the 1980s or the Somalia affair of the 1990s. In both cases records of discussions among public officials regarding how to manage the serious problems that had come to their attention were destroyed shortly after the investigating commission requested them. In response, Canadian FOI legislation was modified to make it an offence to obstruct the release of information by hiding, changing, or destroying a record.

Some direct challenges to FOI entail regulatory or legislative change. As such, they are visible and can attract considerable public attention. A typical change in parliamentary democracies has been restricting access to records of cabinet and other bodies that deliberate policy decisions. Another effective measure that decreases access is increasing fees for information requests and appeals against decisions to deny access. Roberts has written about how successful these tactics were in decreasing access to information in two Canadian provinces.²⁴ He also notes that, in Ireland, increasing the rate charged for making access requests and appealing decisions to the information commissioner had the effect of halving the number or requests.²⁵ As noted earlier, in the wake of the 2001 terrorist attacks, the United States increased restrictions on access to information. Other countries, including Canada, followed suit. Executives in both countries also issued directives to their public services that encouraged officials to adopt a narrow interpretation of FOI legislation. Both initiatives resulted in court challenges.

The centralization of the processing of requests that are deemed by ministers to be of a sensitive and potentially politically damaging nature is yet another challenge that inhibits true transparency. For example, a request for a record that contains information that is likely to create controversy will be flagged and dealt with by officials higher up in the bureaucratic chain. Testimony at Canada’s Gomery Commission hearings revealed that ministerial staff from all governments and Department of Communications officials routinely met to discuss media strategies in order to have an appropriate one in place before the release of information. This does not mean that the information was not released — just that certain information, or information requested by particular people, was delayed.²⁶ Similar problems were noted in Alberta; the overt political interference with a 2004 Alberta access to information request by a reporter who wanted to see flight logs resulted in the RCMP becoming involved. At issue was how the premier and other Conservative Party MLAs were using taxpayer-funded airplanes. Departments have thirty days to comply with FOI requests in Alberta; as in other jurisdictions, they may take a lot of time to process requests because they simply lack the resources to make a timely response. But journalists or opposition politicians who request information as part of a policy debate need the information in a timely fashion. A delay could render the information irrelevant if the “moment” to contribute to shaping a policy has passed. In this case the information was requested in June; the government provided the information three days after the November 22 election.²⁷

The idea of taking a proactive stance against the release of sensitive political information was taken one step further by the Irish. Some departments released the information requested by one journalist to other journalists known to be sympathetic to government. Certain departments actually posted details (including names) of requests and requestors on a website. Cited as an advance in transparency practices by the proponents of these changes, these actions were decried by detractors as a method of discouraging journalists from asking for information, as the “surprise” element with respect to the information requested was destroyed.²⁸ Similarly, an overly enthusiastic response to a FOI request has the same effect; releasing vast quantities of information can be used to delay critics who must wade through a pile of insignificant information to find what they are looking for.

A final but critical factor in decreasing transparency is the restructuring and outsourcing of government service provision. While restructuring the administrative state, outsourcing and privatization are lauded as ways to increase operating efficiencies and to save money, these reforms are in fact rooted in neoliberal ideology, which favours reducing the size of the state by moving many of its activities to the private sector. This is a problem for transparency and for accountability more generally. As a result of the move in the 1980s to “smaller government” and governments that would “steer” the ship of state as opposed to providing the rowing to get there, many services that had previously been delivered by a particular government department were contracted out to service providers outside of government or privatized outright.²⁹ In their quest to “work smarter” and be “leaner,” many governments restructured their public service departments and strove to eliminate task duplication. As a result, some services now are delivered across multiple departments, with each department responsible for a particular task. This has resulted in tremendous administrative confusion with respect to where the lines of accountability run. It is often not clear who is responsible for what, both from the vantage point of the citizen and from the perspective of a public servant. If a requestor is not sure who is actually accountable for a government service, that person will have a difficult time directing an access to information request to the appropriate department.

The use of Internet technologies was lauded as a cost-saving device in keeping with the “leaner” government philosophy; individuals could access information online and communicate instantly (and cheaply) without having to go through an intermediary. But this, along with the desire to cut costs, often resulted in the removal of the support personnel that kept the records in order.³⁰ The volume of electronic information is huge and thus, one assumes, would assure a good paper trail. But the ability of people to retrieve the information on demand in many cases has been greatly reduced. As was pointed out earlier, having the information does not guarantee that you can find it when you need it.

The difficulties with privatization and contracting out for maintaining administrative accountability are even more complex and have been documented elsewhere. To summarize briefly, once a service passes into the private sector for provision, the rules and norms that govern administration in the public sector no longer apply. As Mulgan observes:

Because contracting out confines the duty of contractors to the performance of the terms of contracts and confines the right of supervising principals to enforcing the terms of contacts, it rules out the possibility of day-to-day supervision and intervention which is part of the normal practice within bureaucracies and indeed within any organisation of employees serving a common employer.³¹

Moreover, ombudsmen working in the public sector typically do not have the jurisdiction over the private sector that they would need in order to investigate maladministration.³² With respect to information access, contractors fear that providing detailed information regarding their operations and contracts will undermine their competitive position. While one part of the argument for outsourcing involves avoiding the costly “red tape” that characterizes bureaucracy, the “red tape” itself comprises part of what makes a bureaucracy an indispensable organizational form. That is, a bureaucracy is critical for governments wishing to provide services that are not based on the ability to pay but rather on notions of equity tied to citizenship. Access to information may be part of the bureaucratic baggage that is openly disparaged as a characteristic of the public service, but it also indispensable in ensuring that citizens are treated fairly and equitably.

Lest the preceding give the impression that resistance to transparency is always a bad thing, it should be pointed out that there are a number of reasons why transparency might not always be the best mode of operation. From an organizational perspective, transparency will illuminate best practices and will encourage “good behaviour.” But the problem with transparency is that it might potentially open the floodgates of unsorted information. If released information is not assessed and packaged as part of a manageable framework, it could result in information being taken out of context and providing an incomplete and thus inaccurate version of any particular situation. To counter this, public servants may resort to deception in order that a particular “truth” is not used in a way that creates confusion or in a way that distorts situations.

Moreover, there are compelling reasons for policy makers to retain a degree of privacy when contemplating decisions. As was noted earlier, privacy allows for dissenters to dissent without fear of having the differing opinions spun as a sign that junior ministers or policy makers have lost confidence in or respect for their superiors. With respect to decisions that require negotiations, a public body may be able to defend an outcome in the end that has clear benefits, but it may not so easily be able to defend sacrificing particular interests during the negotiating process in order to achieve those ends. There is also the danger that complex policy may be reduced to simplistic treatments by either special interest groups or by the media. Complex problems require sustained analysis by those with specialized expertise; this by definition would take decision making out of the hands of most members of the general public. Another central tenet of bureaucracy is the guarantee of anonymity. The politician makes the decision and is responsible to the public for that decision. Each public servant involved in the implementation of the decision is responsible to his immediate superior for his performance; at the top of the pyramid the senior bureaucrat remains shielded from the public, as she is accountable to the minister. This system is critical to ensure that the public servant performs a specialized function within the bureaucracy on the basis of his expertise, as opposed to his political acumen or partisanship.

This leads us back to the beginning: transparency must be balanced against privacy. Though the public may wish to know all sorts of things, it may be for the wrong reasons. Publishing salaries of public servants may be useful in assessing how well public tax dollars are being used, but it may also discourage competent people from applying for public sector jobs. Will the average person make serious assessments on salary versus the relative “worth” of a particular position, or is he just curious as to what his neighbour the public servant makes? Thus, in all access to information regimes, the public interest must be weighed against what the public is interested in, and this determination must be made according to clearly articulated rules and within established timelines. Finally, how the public interest is defined is dependent on the values of the particular society in question.

INFORMATION ACCESS, EQUITY, AND FAIRNESS

Like protection of privacy, FOI is a complex concept — one that can be difficult to explain to a neophyte and complex to operationalize. Access to information is fundamentally about transparency — and transparency is a necessary condition for accountability. Yet the point at which transparency becomes an infringement on the ability of individuals or a group of individuals to pursue their self-interest without undo interference from others is not clear. Trade-offs have to be made, and the tolerance for negative consequences will depend on the value the society puts on those things being traded. This point is particularly relevant for those who work within the administrative structures of large organizations. Developing access to information policies without understanding basic principles will result in cumbersome procedures that will more often than not diminish both accountability and administrative efficiency. But clearly the assessments of the pros and cons of any particular course of action can only be made if the concepts are unpacked, the consequences are clear, and a value weighting is made.

While FOI legislation is applicable to the public sector, much of what has been said about the importance of transparency also holds true for the private and non-profit sectors. The fundamental difference between them is that the private sector seeks to maximize profit for its shareholders while the public sector seeks to maximize the public good for its citizens. The non-profit sector sits somewhere between the private and public in that it also focuses on maximizing a public good, but that good is generally targeted at a subset of the public. The concern for accountability and ethical practices runs through all sectors, however, and ultimately stakeholders in any of them can hold decision makers responsible for their actions. Again, the linkage between access and privacy is evident, as privacy legislation that covers the private sector ensures that individuals have access to personal information held by corporations. While non-profits are unevenly covered under privacy legislation, in some jurisdictions they fall under private sector legislation if they engage in commercial activity.

Access to information regimes are based on a number of fundamental principles: individuals have the right to know what is known about them; the rules for what can be accessed and what cannot are clearly laid out; organizations have a duty to comply within a reasonable time frame; and a third party has the responsibility to act as an arbiter in case of dispute. While these rules do not guarantee a culture of openness, they at least signal the commitment of an organization to the basic principles of accountability. Of equal importance to a culture of openness is adequate training for those who will be implementing the rules, as lack of compliance can often be traced to inadequate understanding of proper procedure as opposed to outright refusal to fulfill a given request. Accountability is a prerequisite for good governance, but there are no easy answers for how it should be attained and how much should be expected. What is clear, however, is that the electronic age is ushering in a whole new set of issues that must be grappled with in order to ensure that structures of government align with some basic democratic principles. Specifically, how we handle information has much to say about how we approach notions of personal autonomy, equity, and fairness. How these combine to produce good governance should be of central concern to anyone who values democratic institutions. The next three chapters demonstrate the complexity of balancing access to information with the protection of privacy by analyzing “real life” applications of the two concepts.