AUDIO FILE

Forword by Toby Mendel

To Fallen Behind: Canada’s Access to Information Act in the World Context. Report by Stanley Tromp, 2008

When Canada adopted its Access to Information Act in 1982, it joined a small club of about ten nations, mostly from a peer group of Northern Europe and New World countries, with laws granting a right to access information held by public bodies. These countries saw access to information or freedom of information legislation essentially as a governance reform, a means to make government more accountable and more responsive to the needs and demands of citizens. At that time, the idea of access to information had rarely, if ever, been addressed by international organisations, let alone as a human rights issue, and there was nothing in the way of an international movement promoting access to information laws.

Today, some 25 years later, the situation is fundamentally different. Depending on how you count, some 75 countries have now adopted access to information legislation, with at least another 35 considering it. Many inter-governmental bodies, including the European Union, the UNDP, the World Bank, and all of the regional development banks, have adopted access to information policies. There is a significant global civil society fraternity advocating for more, and better, access to information laws in countries all over the world. And there is a large and growing body of authoritative statements by international human rights bodies and officials, including international human rights courts, to the effect that access to information is a fundamental human right. Indeed, one can observe a shift in terminology, as access to information/freedom of information laws are starting to be called right to information laws (see, for example, the 2005 Right to Information Act of India).

There are very good reasons for this remarkable trend. The traditional governance reform drivers are still important. Recognising a right to information promotes accountability, holds governments to their promises and helps control corruption. It also makes good business sense, fostering a synergistic flow of information between government and the profit-making sector, which enhances the competitiveness and efficiency of the latter.

The shift to recognition of access to information as a human right, however, has deeper roots in changing notions of the importance of information in society and the very concept of democracy as ongoing participation in decision-making. It reflects the idea that public bodies hold information not for themselves but as custodians of the public interest. Everyone should have a right to access that information so as to be able to influence the activities of public bodies for the greater public good. This, in turn, is based on the idea that widespread public participation, rather than oversight by a few wise men, is the most effective way to run the public sector.

The basic structure of a good law – a presumption in favour of disclosure, procedural rules for requesting information, a narrow regime of exceptions to the right of access, and the right to appeal to an independent body against refusals to provide access – was already understood in 1982. But with the shift from governance reform to basic right has come a greater understanding of what makes access to information laws work well in practice. The importance of ‘details’ such as tight timelines for responding to requests for information, limiting exceptions to circumstances where release of the information would pose a risk of harm to a protected interest, comprehensive public interest overrides for exceptions, sanctions for officials who wilfully obstruct access, and oversight bodies with binding powers to order the release of information has come to be recognised.

In 1982, the Canadian Access to Information Act was a progressive piece of legislation which could claim to be competitive with the other access laws which existed at the time. Unfortunately, Canada has failed to reform the legislation sufficiently over time to respond to implementation problems and to incorporate new and progressive developments in the sector. There has also been inadequate attention to the need for reform due to technological changes and changes in the structure of government. It lacks all of the details mentioned above, as well as a number of other critical features widely recognised to underpin effective access in practice. Furthermore, the impact of the ATIA is limited by an impressive array of secrecy provisions in other laws which override the right of access. And its scope is increasingly limited as regards its application to bodies which discharge public functions.

Mr. Tromp’s book is an impressive comparative study which highlights all of these problems and more, comprehensively detailing how the Canadian legislation and practice fails to conform to international standards and the practice of other democratic States. It is a clarion call to those who would wish to ensure democracy and respect for human rights in Canada: the Access to Information Act and its implementation in practice are in urgent need of reform. Otherwise, Canada’s international reputation as a country with a strong commitment to participation and human rights, as well as its ability to deliver those benefits to its citizens, are at risk.

- Toby Mendel, Halifax, Nova Scotia, Canada, August 2008

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Toby Mendel has been the Law Programme Director for the past decade with Article 19, a London-based human rights organisation with a specific mandate and focus on the defence and promotion of freedom of expression and freedom of information worldwide.

In that capacity, he has worked extensively on right to information issues in Asia, Africa, Europe, the Middle East and Latin America, running training seminars, taking cases to both national and international bodies, advising NGOs and governments, and working with officials to prepare draft right to information laws. Prior to joining Article 19, Toby Mendel worked as a senior human rights consultant with Oxfam Canada, and as a human rights policy analyst at the Canadian International Development Agency (CIDA). He has a first class LLB (law) from Dalhousie University.

He is the author of The Public’s Right to Know: Principles of Freedom of Information Legislation (1999). These Principles were endorsed by the UN Special Rapporteur on Freedom of Opinion and Expression, in his report to the 2000 session of the United Nations Commission on Human Rights.

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