Remarks to the Archives Association of Ontario Annual Conference “Access and Privacy”

KINGSTON, ONTARIO

[2004-6-1]

I am pleased to be part of this Annual Conference of the Archives Association of Ontario and to be able to add the perspective of the Office of the Information Commissioner of Canada to your deliberations. Your brochure states that this conference is concentrating on how both access and privacy issues affect the archival world. I think I can assist in this endeavour as both my area of expertise, access to information, and your area of expertise, the archiving of government records, are part of the bigger picture of governmental accountability.

At the federal level, in Canada, we are fortunate to have many mechanisms of accountability. Still, the new government of Prime Minister Paul Martin Jr. has identified a "democratic deficit" in Canadian affairs. What I am going to talk about today are some elements of this "democratic deficit", how they may or may not be addressed and how they affect access to information and archival issues.

I have been encouraging the Canadian government to recognize that effective, democratic governance will be an unattainable goal unless the challenge of information management in government is moved into the top ranks of the government’s priorities.

A healthy democracy – as history has taught us – is one where there exists a panoply of incentives to move those who exercise the power of the state away from self-interest and corruption and towards the public interest and stewardship. As a group, such incentives might be termed "mechanisms of accountability". Among such mechanisms are universal suffrage, fair elections, uncensored media, independent judiciary, military and police forces controlled by elected officials and, of course, a vibrant access to information régime. Also among the mechanisms of state accountability are individual rights such as freedom of speech and assembly, protections against unreasonable invasions of privacy and the right to a fair trial before being deprived of liberty or property.

My point is not to say that we need more or less such mechanisms of accountability. Rather it is to say that none of them have any viability without the oxygen of information – information about what governments think, decide and do; information about what governments know about their citizens and about the costs and effects of government decisions and actions.

This is precisely why an increasing number of governments in mature democracies have subjected themselves to freedom of information laws. And it is why an increasing number of less mature democracies are being "encouraged" by their citizens, the World Bank and the IMF to adopt freedom of information laws as an anti-corruption measure.

This vital, fundamental link between information rights and democratic health is eloquently captured in these words from a 1997 decision of the Supreme Court of Canada:

"The overarching purpose of access to information legislation … is to facilitate democracy. It does so in two related ways. It helps to ensure, first, that citizens have the information required to participate meaningfully in the democratic process, and secondly, that politicians and bureaucrats remain accountable to the citizenry".

This flow of government-held information, as of right, to the citizen, and to these other mechanisms of accountability, is in jeopardy in Canada.

After almost 21 years of struggling to break down a culture of secrecy in official Ottawa – of fighting in the courts to keep exceptions to the right of access as narrow and specific as possible and to ward off efforts by the government to escape from the investigative reach of the Information Commissioner; of judicial and administrative battles to get government to obey the response deadlines in the Act – after all this, we now risk losing the battle for open government. And we do not risk defeat because of a government leadership which is unsympathetic to the right of access or because of a distracted citizenry. Rather, the most significant threat to open, accountable government is a crisis in information management in the federal government of Canada.

When records documenting the actions, decisions and considerations of public officials are not created; when such records are created but are not included in an indexed institutional system of records or when the disposition or archiving of records is left to the unguided whim of the records creator, then there can no longer be an effective right of access to information no matter how strong the words of the law may be.

As well, all the other mechanisms of accountability are suffocating from the lack of information oxygen. The Auditor General keeps warning Canadians and Parliamentarians, in ever more urgent tones, with each passing year, that the audit function cannot be carried on with confidence in the absence of a paper trail. Parliamentarians and Parliamentary committees are expressing consternation about the unavailability of government records to assist them in their deliberations. Journalists are becoming less able to obtain source records and data and more reliant on the carefully-managed information releases from government communications spin-doctors.

The topic of information management may not seem – at first – to have much sex appeal. But we all should be passionate about it, because on it hinges our very ability as democratic societies to have good and accountable government. It is one of the first steps in dealing with the "democratic deficit" in any jurisdiction.

In the Canadian federal public sector, there have been some positive developments, there is a positive momentum and our challenge is to keep pushing ahead.

First, information management is becoming more widely recognized as a core discipline of public sector management.

Information is becoming recognized as one of the four primary assets that government depends on and must manage in an effective and professional manner (the other resources being money, people and technology).

Second, there is stronger leadership for information management.

At both the central agency and departmental levels, stronger leadership for information management is emerging. Canada’s Chief Information Officer is creating a stronger focus on IM and linking IM more closely with Canada’s Government On-Line priorities. At the operational level, the Library and Archives of Canada is emerging as the centre of expertise and lead agency for the life-cycle management of government records and documents. Recently, the minister responsible for the administration of the Access to Information Act, the President of the Treasury Board, integrated the access to information and privacy policy centre in the Treasury Board Secretariat with the information policy centre under the umbrella of the Chief Information Officer Branch. This integration is a positive development as it recognizes the vital link between effective information rights (i.e. the right of access and privacy) and effective records management.

The Framework for Managing Information, the Management of Government Information policy and the Information Management Capacity Check tool, are the products of significant consultation among central agencies.

A new Management of Government Information policy was approved for the government of Canada in May, 2003. MGI succinctly defines the life-cycle operational requirements for managing information in all forms and ensures its usability and integrity through time and technological change. It documents decisions and decision-making processes throughout the evolution of policies, programs and service delivery. It also provides information about the legal framework for recordkeeping, requires that departments ensure effective IM governance and accountability arrangements, and necessitates ongoing evaluation of IM activities. Further, it uses electronic systems as the preferred means of creating, using and managing information.

Third, individual departments are improving their IM programs.

Individual departments are taking steps to improve records and information management. With the necessity to implement the new Management of Government Information policy in mind, a number of departments are reviewing their IM infrastructure, raising internal awareness, and introducing departmental policies, standards and processes. The IM Division of Treasury Board Secretariat is using a newly developed tool, the IM Capacity Assessment, to determine the state of IM across the federal government and the gap between today’s levels and the targeted "end-state." This work should be completed by this autumn. In my own department, we have become quite advanced in terms of our electronic records management systems. I can testify from personal experience that well-designed electronic document management actually does facilitate our work and lead to better decisions. Attention to information management is not just "busy work!"

Overall in government, though, progress "on the ground" is still modest and varies widely depending on the degree of senior management support and the level of resources made available.

The Steps Ahead – Where should we be headed?

In some areas of the government, there is still little visible evidence of change. Program and policy managers, information specialists, auditors, legal staff and parliamentarians, who rely on good business records to do their work, continue to be frustrated. Audit reports and newspaper headlines still remind the public that it cannot always access or trust government information to which they have a right. Action is needed in the following areas:

Parliament must play a more active oversight role for IM.

The effectiveness of Parliament as a fundamental institution of democratic governance depends on the information it receives, considers and is able to act upon.

It is essential that Parliament demand the information it needs to review and approve programs and expenditures, assess their effectiveness, consider new legislation and perform other functions. It also needs to assure itself (and Canadians) that departments have the necessary underlying IM infrastructure and recordkeeping practices in place. It can accomplish these ends through its standing and special committees, through the reports and audits it requests from departments and through other opportunities to exercise oversight. This is the ideal place to start the attack on the "democratic deficit", for the problem is not only at the political level, as we have seen, it exists as well within the bureaucracy. The attack on the "democratic deficit" will take place on both fronts, and there not only must be leadership from Cabinet and the senior civil servants, but House of Commons and Senate Committees must accept their responsibility as well.

The need for a recordkeeping law

Federal government recordkeeping policies and practices still lack a strong foundation in law. Canada has legislation dealing with certain aspects of information management (e.g., public access and privacy, archival preservation). What is missing is legislation that deals explicitly and comprehensively with the creation of records and the government’s stewardship of recorded information over its complete life cycle.

Although some program-specific legislation includes records provisions, Canada does not impose a general legal obligation on ministers of the Crown and their departments to create and maintain full and accurate records of their business activities (the duty to document). The law would recognize the business and other value of government’s information assets in all forms (including their importance for public safety and security) and require their effective life-cycle management.

A Fundamental Priority – Changing the Bureaucratic and Political Culture

Some issues are more fundamental, complex and difficult to change. Despite the efforts of many conscientious and dedicated civil servants, large bureaucracies sustain a culture that resists openness, transparency and record keeping. An introverted and risk-reluctant command-and-control hierarchy still characterizes most parts of the federal government. A dogged unwillingness to admit error still persists. Where this is the case, the tendency is either not to create important documents or to hold onto information rather than to release it and to place loyalty to a minister above the public interest. Senior managers at a recent IM Symposium identified "organizational culture" as the second greatest barrier to good information management (after "lack of leadership"). Change must come from the ranks of the most senior public servants and from the political level itself.

We have no choice; if we want a healthy, vibrant democracy, we must have a healthy, vibrant information management régime. We are moving towards a more cohesive, comprehensive and effective information management environment for the federal government, but we are limping and crawling when we should be striding and running.

The Prime Minister has recently been commenting on the need to eliminate the "democratic deficit" in the government of Canada. Of course, one of the ways in which this can be done is by enhancing the information rights of Canadians, particularly by reforming and modernizing the Access to Information Act. And of course, as is my thesis in my remarks today, one of the best ways of enhancing the information rights of Canadians is by pushing ahead vigorously with improving the information management in the government of Canada, including the passage of a "recordkeeping" law.

Thank you for your kind attention.