How can Canada fix its FOI systems? Norway, Mexico and others may offer solutions

In Norway, the government publishes an inventory of public records online. With a click of a button, anyone can request documents from public institutions, including budgets, contracts and e-mail correspondence, and expect a response within a few days.

In Mexico, it’s common for the country’s powerful transparency watchdog to issue fines if public institutions are found to have violated freedom of information laws.

And in Britain, there is a “20-year rule,” which requires institutions to make a huge amount of previously undisclosed records open to the public after two decades. This includes documents that would not previously have been eligible for release through the country’s freedom of information process.

Freedom of information laws – sometimes known as FOI laws, or access to information laws – exist in more than 130 countries around the world. They provide a legal framework for citizens to request and obtain public records that are not otherwise available.

These laws are intended to serve as a check on power, and are widely seen as necessary to maintaining a functioning democracy. When the federal government passed access legislation in 1982, Canada was among the first 10 countries in the world to do so, making it a global leader. Today, it has become an international laggard.

For more than a year and a half, The Globe and Mail has been investigating the country’s crumbling access regime as part of a series called Secret Canada. This reporting has shown that, as countries around the world embrace technology and pro-active transparency to improve their FOI processes, Canadian jurisdictions are falling farther and farther behind.

Those who study and work in the FOI field say Canadian leaders should be looking abroad for inspiration. In many cases, there are already proven solutions to some of the country’s most common access problems.

Sweden

Sweden became the first country in the world to enact access legislation when it passed its Freedom of the Press Act in 1766. It continues to be a world leader.

Although its FOI system is not perfect – in recent years its government has been expanding the scope of information that is protected from public release – the Swedish information regime prioritizes access in a way that the Canadian process doesn’t.

“In Sweden, the right to information is protected by the constitution,” said Tove Carlén, the legal adviser to the Swedish Union of Journalists. ”It’s also in the constitution that if you’re employed by an agency you have the right to talk to media … So it’s illegal for a boss at a hospital to say to the employees that you can’t talk to media.”

Freedom of information is not protected by Canada’s Charter of Rights and Freedoms, although some access advocates have said there is a legal argument to be made that the Charter right to freedom of expression does inherently cover access to information, because a citizen can’t express themselves accurately if they are not informed of all the facts.

The Swedish system is also much more efficient than Canada’s. In Canada, where the federal government and every territory and province has its own FOI law, most jurisdictions require institutions to make decisions on FOI requests within 30 days of receiving them. (The Globe’s reporting showed that only half of requests made to ministries and departments are completed within this timeframe.) In Sweden, requests for information must be processed “as soon as possible,” according to a government guide to the legislation.

“In Sweden we have no such limits. But established practice says one to two days if there are no complicated considerations that require more time,” Ms. Carlén said.

Britain

There is a recognition built into access laws that some information must be kept secret in order for government to function, such as records related to national security and internal cabinet deliberations. This is why FOI legislation exempts particular types of records from release.

But Canadian FOI laws subject all records to these exemption standards, whether the documents were created 100 years ago or last week. Legislation in other countries accounts for the fact that, as time goes by, the risks associated with releasing certain types of information diminishes.

Kristina Lillico, the director-general for access to information and privacy at Library and Archives Canada, said Britain is a good example of this.

She described the country’s access laws as having “prescriptive and progressive” language, including clear timelines for when records that are otherwise exempt under FOI can be opened to the public.

In Britain, that release threshold is typically two decades, because of what is known as the “20-year rule.” Britain used to have a 30-year rule, but after a review about 15 years ago the government decided to shorten the timeframe. (Sweden has something similar. That country’s FOI Act sets out “secrecy periods” for different types of records, which vary from between two and 70 years, depending on the nature of the information.)

The advantage of set time limits is that they remove ambiguity. Many FOI exemptions in Canada are discretionary, meaning the public service can decide to release some documents even if the law says they don’t have to be released.

A look at the lapses and delays for FOI requests from ministries across Canada

Nova Scotia’s freedom of information system understaffed, lacks power, watchdog says

The Globe’s reporting has found that FOI co-ordinators, who work within public institutions to respond to FOI requests, are more likely to err on the side of caution and not release records, even if they could be made public. This is both because of widespread risk aversion within the public service, and the fact that there are few if any consequences for improperly withholding access in Canada.

Ms. Lillico said the vagueness of Canadian law means there is often a lot of back-and-forth discussion about FOI requests between different stakeholders within governments, which slows down the process. “Different departments have different ideas about what is sensitive,” she said.

Where historical records are concerned, this dynamic has created a massive backlog. It is not uncommon for people who send FOI requests to Canada’s archives to wait well over a year for responses.

Mexico

Toby Mendel, the executive director of the Centre for Law and Democracy, a Halifax-based human-rights organization that works with countries around the world on their FOI systems, said one of the most obvious areas where Canadian jurisdictions could improve is technology.

“On the tech side of things, Canada is a laggard,” he said.

If policy makers are looking for inspiration, Mr. Mendel said, Mexico is an example of a country that has “fully embraced online platforms.” There, FOI requests – as well as appeals of unsatisfactory responses to requests – can be filed through a central website, the Plataforma Nacional de Transparencia. Meanwhile, most public institutions in Canada require applicants to send requests through the mail.

And Mexico’s access legislation is robust. The Centre for Law and Democracy ranks the strength and openness of access legislation around the world. Mexico is second. Canada is 51st. (These rankings only assess the legal framework of federal FOI law in each country, not whether it is being implemented.)

Adriana Garcia Garcia, a lawyer and researcher who has studied the Mexican FOI system and who currently works as an expert adviser at the Stanford Rule of Law Impact Lab, said one of the best things about Mexico’s access regime is that public institutions are required to release vast amounts of information pro-actively.

“There’s an obligation on the agencies to provide important information to the citizens,” she explained. This means people don’t need to file as many FOI requests as they otherwise might have to.

Article 70 of Mexico’s General Transparency Law lists nearly 50 categories of records that must be made public, including the organizational structure of each public institution; the responsibilities of each public servant and their gross and net remuneration; contracts, agreements, permits, and licences; bid process documents; and “any other information that is useful or considered relevant” based on “frequently asked questions” by the public.

In Canada, some of this information isn’t even available through FOI processes.

Canadian access advocates have long argued that public institutions, which frequently complain that they are buried beneath an unmanageable volume of incoming FOI requests, could ease the workload by more frequently publishing important records voluntarily. If the information was already public, people wouldn’t need to ask for it formally.

In Mexico, access to information is enshrined in the country’s constitution as a fundamental right. There are also penalties for institutions that don’t fulfill their transparency obligations. Ms. Garcia Garcia said it is common for the National Institute for Transparency, Access to Information and Personal Data Protection (INAI) – which is responsible for upholding Mexico’s access laws – to impose fines.

The administration of Mexican President Andrés Manuel López Obrador has been trying to roll back some of the country’s strong FOI processes. Most notably, he has made it more difficult for INAI to operate by refusing to fill key job vacancies.

Even so, Mexico’s access system has continued to function, and many access experts point to it as a world leader.

Norway

In Norway, where the right to information is also protected by the constitution, there are no FOI co-ordinators or offices. Transparency is the job of every public servant, and the country hosts an open database that lists public records. Anyone can request those records with a few clicks.

Each request goes directly to the person in charge of the record being sought, explained Tron Strand, an investigative reporter and vocal freedom of information proponent with Norway’s press association. From there, applicants can expect replies in a few days.

If the wait for a reply goes longer than five business days, the requester can file an appeal. That complaint must be handled within 10 working days. If the applicant is still unhappy, then they can turn to the country’s ombudsman, he said.

In Canada, the appeals process typically takes months – and in some places years – to complete.

The Norwegian system is not without problems, Mr. Strand said. For example, the country’s ombudsman can only issue recommendations, and does not have the power to order an institution to release a record. But Mr. Strand said institutions usually follow the ombudsman’s advice.

This is not the case in Canada. Here, every province and territory has an appeals body, and so does the federal government. Most of these bodies have order-making powers. The handful that don’t are frequently undermined.

Recently, Nova Scotia Information and Privacy Commissioner Tricia Ralph, who handles access appeals in that province and does not have order-making powers, told The Globe that the government ignores her recommendations 52 per cent of the time.