The evolution of freedom of information in Ontario: From reactive to proactice disclosure

The modern era of Freedom of Information (FOI) in Ontario began when the Williams Commission on Freedom of Information and Individual Privacy was appointed in March, 1977. The three-volume set of recommendations the Commission presented to the provincial government in August, 1980 were ultimately used as the foundation for Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA ) which came into effect on January 1, 1988. Three years later, the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA ) also came into force. Both of these Acts give individuals the right to request access to information held by their governments, including general records and records containing their own personal information, and it requires that these organizations protect the privacy of the personal information that they hold.

Since then, Ontario has made many significant strides in the direction of greater transparency and accountability. This includes measurable improvements to the province’s access to information regime established by FIPPA and MFIPPA . Similar to other freedom of information legislation, these Acts require government organizations to make a decision about an access to information request within 30 days. Back when I first became Commissioner in 1997, the number of requests that were being responded to within that 30-day period was unacceptably low, at around 48 per cent. However, through the hard work of my office and the increasing acceptance of FOI by Ontario’s public servants, that response rate has risen to an average of over 80 per cent. I admit that this is not perfect; however, some requests are complex and may require an extension based on the nature of the request. Nevertheless, real progress has been made in Ontario with a growing and demonstrable appreciation by our public institutions for the importance of an access to information regime.

My office has pushed for greater response rates to FOI requests, and to have more and more organizations covered by the Acts. As far back as 1994, my office submitted proposed changes to Ontario’s Legislature calling on the government to extend access laws to cover a wider set of public organizations in order to make them more accountable to the public. In 2003, Ontario’s energy utilities, Hydro One and Power Generation, were brought under FIPPA . Ontario’s universities were finally placed under FIPPA in 2006. And in 2012, Ontario became the last province in Canada to bring its hospitals under freedom of information legislation, giving citizens the right to make a request for access to a range of general records.

However, the evolution of FOI in Ontario is not simply a question of improving response rates and increasing coverage of public institutions. Indeed, the concept of the public’s right to know now extends far beyond the requirements of FIPPA and MFIPPA . For over two decades I have been repeatedly calling on our government to make itself more transparent and accessible in response to the public’s growing expectations for access to government-held information. And there has been some success—for example, it is now a requirement for Ontario’s ministers and senior civil servants to proactively disclose their expenses. A number of municipalities in Ontario and other government agencies have also adopted this practice and proactively post their expenditures on their websites.

My office has been dealing with the issue of proactive disclosure and open government since it first opened its doors in 1987. However, a lot has changed since then, namely the advances in information and communications technology that we now call the Internet. It is certainly much easier to disseminate government information now than when I first started at the Office of the Information and Privacy Commissioner of Ontario (IPC). The dominant practice now, as in the past, is known as Routine Disclosure, whereby access to general records was granted on a routine basis as the result of a specific request. However, I feel that we are entering an age where Routine Disclosure will soon be a thing of the past. New technologies are ushering in an era that will allow for Automatic Disclosure to be the norm, and not the exception.

Further, I believe that governments are beginning to recognize that public sector information is a public resource with valuable economic and social benefits that can make positive contributions to a healthier economy, society and democracy.

As every year passes, more and more jurisdictions around the world are moving towards “Open Data”—an initiative that began with the idea that certain types of non-personal government-held information should be made freely available to everyone to use and republish. The ubiquity of the Web and accompanying technologies has driven dramatic new increases in public demand for government-held information, providing a new dimension to civic participation, and redefining the significance of freedom of information legislation.

AnnCavoukianWith so much data now available, and in so many different formats, individuals, community groups, and researchers have the power to use public information for a variety of purposes—for example, to spot inefficiencies in government services, and make recommendations directly to the offices responsible for those services. Our economy also benefits by giving businesses access to a wealth of new information from which to improve or create new products and services. There is now the potential to create entire new industries and economies where none existed before. Just one example is the rapid growth of applications, better known as “apps.” People can now download apps onto their mobile devices that utilize government information such as public transit schedules, traffic reports, flu maps, and health inspector restaurant reviews, just to name a few.

Around the world, a number of governments have joined the Open Data movement to take advantage of the economic and social benefits. In the United States, President Obama has ordered government officials to release more information to improve the amount and quality of data offered online, in addition to requiring every government agency to provide at least three datasets of high quality value. The results in the United States are commendable, with Data.gov offering thousands of datasets which can be put to use by individuals and businesses alike. The United Kingdom has also embraced Open Data with their Data.Gov.UK website which also offers hundreds of datasets and a substantial offering of apps.

The Government of Ontario joined the Open Data movement in 2012, with its own Ontario Open Data website as part of its commitment to a more open government with an array of datasets covering topics such as transportation, infrastructure projects, and tourism. There are also a number of municipalities in Ontario featuring Open Data portals, with the City of Toronto setting a world-class example. The Toronto Open Data site is a clean and efficient one-stop website where anyone can find and download datasets that cover an unbelievable amount of information covering almost every subject matter relevant to the city. By eliminating the practice of Routine or Reactive Disclosure, the City not only provides service to its citizens and industry in the form of valuable information, it also saves time and money in the process—truly a win-win scenario.

Being in a unique position where I serve as both the Information and Privacy Commissioner, I am often asked whether I find a conflict in what appears to be a contradictory situation—having to defend the right to privacy while ensuring the right to access and freedom of information. The answer to that question is, simply, no. In the former, you hold the data back and let the individual decide what to release; in the latter you push it out the door.

Privacy and access are not in conflict, they are complimentary to each other. Both guarantee the fundamental freedoms that we enjoy in our free and democratic societies: the right to hold our governments accountable and the right to preserve our privacy. That is why free societies around the world seek to protect both. This is exemplified by the statutes that I oversee in my jurisdiction, which play the dual role of providing a right of access to information under the control of government organizations while equally protecting personally identifiable information and providing individuals with a right of access to their own personal information.

While I would be among the first to sing the praises of Open Data, we must also acknowledge that Open Data has hazards and pitfalls that need to be addressed, namely the protection of individual privacy. If personal information is not respected and protected by jurisdictions implementing Open Data programs, those programs will suffer. A prime example is a story that is now well known. Near the end of 2012, the Journal News in New York published a map showing the home addresses and names of handgun owners in two New York counties using data acquired from government sources. In retaliation, a lawyer in Connecticut published the addresses and phone numbers of the newspaper’s staff. To make matters worse, it was later discovered that much of the information used to identify gun owners was found to be inaccurate or outdated. These experiences, as well as being traumatic for those involved directly, can undermine public support for Open Data.

This story contains a very clear message for government. It is of course understandable that law enforcement agencies should want to collect personal information on gun permit holders. However, this data is not collected in order to create a public database, and should not be used for that purpose. Not all data should be free and open, especially if it is associated with personally identifiable individuals. We need to distinguish clearly between data that is useful for the public and presents few privacy risks, and data that should be considered private and subject to restrictions. Such clarity is needed before potential confusion grows and brings unnecessary challenges to the protection of privacy and to the growth of Open Data.

Despite these potential challenges, the concept of Open Data has such merit that it inspired me to create Access by Design (AbD)—a concept that encourages public institutions to take a proactive approach to releasing government-held information.

I see the concept and principles of AbD as the next logical progression for governments looking towards the disclosure of government-held information and moving into the future of Open Data.

Privacy by Design (PbD), a concept now considered an international standard in privacy protection, embeds privacy into the design and operation of information technologies and systems. In other words, it addresses the privacy issue in the development process of a policy or program, rather than as an afterthought or after-the-fact addition. AbD is the flip side of that very same concept. Governments should always be taking a more proactive approach to disclosure, but AbD embraces much more than simple proactivity. It calls for a more responsive and efficient government that engages in collaborative relationships with individual citizens, the private sector, and other public institutions.

The first principle of AbD is, naturally, to be proactive and not reactive. Although it is important to have a formal access-to-information regime governed by clear rules, it can be a slow and cumbersome process. It can also be used by some organizations to delay the release of data. Instead, the formal access-to-information regime should be reserved for those situations where government has a legitimate and legislatively recognized reason for withholding information, while data openness is the default.

The second principle is what I call Making Access Truly Accessible. Simply releasing more data is not enough. AbD requires that public information be easily found, indexed, and presented in user-friendly formats. The point of the exercise is not to bury people in information—it has to be formatted in a way that makes it truly accessible. There is little value in proactively disclosing public information if it is quietly placed online in obscure locations, using uncommon software, and to which very few people have access.

This leads me to the third principle: Quality of Information. There is very little value in gaining access to poor quality data. Information has been called the lifeblood of the 21st century. This is particularly true when it comes to meaningful citizen participation in public life. Not only is it essential for government institutions to place public data in public databases, they must also ensure that the information is accurate, reliable, and current. Quality control and assurance protocols are vital to ensure that public participation in our society remains possible and relevant.

While privacy is not a central principle in AbD, it is still critical in the application of AbD. When governments are designing new data sets or programs, consideration should be given at the conceptual stage to how privacy will be protected in any access to information regime. Rather than approaching privacy and access as an issue to be dealt with down the road— perhaps in response to FOI requests—governments should be looking at what information they are collecting and how they can effectively make it available to the public without compromising privacy. By building privacy and access into programs at the beginning, we can achieve the greatest benefits of open government and Open Data.

The advent of the Internet has brought explosive growth in the amount of information available to the average citizen. While formal freedom of information regimes remain relevant, they are no longer sufficient as the primary means of managing government-held information. Public institutions need to accept the fact that public expectations surrounding access to information will never be the same. Our governments need to embrace the new culture of Open Data by making data readily available to the public as part of the social contract to serve their citizens. Transparency and access to information are vital components of a free and functioning democracy. Citizens must be ensured the right to government-held information in order to participate meaningfully in civic life—something that is not possible if government activities are shielded from public view. Scholars must be able to access government data to critique current activities and design the evidence-based policies of the future. When information is freely available, citizens and researchers alike can question the actions of their government and participate meaningfully in policy decisions. Transparency creates a culture of accountability, and accountable government is the very foundation upon which our free and open society is built.

Ann Cavoukian is the Information and Privacy Commissioner for Ontario.

  • Chris Carter

    #1. Good morning. Firstly: thank you so much to Dr. Cavourkian for her years of very high level service to the people as the IPCommissioner of ON. I was disappointed to see that all of those very informative videos which were on IPC’s website and Youtube channel were deleted at some point after her departure: https://www.youtube.com/channel/UCff_vJ7GY4Q8gR-_oBKsaNA/videos

    That was wrong on any and all levels.

    #2. Fortunately fixcas.com saved a local copy of her 2012/13 release/press conference of the Annual Report at the OLA. Below is the 2012/13 press conference: http://fixcas.com/cgi-bin/go.py?2013d.Cavoukian

    Freedom of Information for CAS

    August 19, 2013

    Ontario’s Information & Privacy Commissioner Ann Cavoukian wants to open children’s aid societies to the freedom of information law. The text of her recommendation is below, you can hear her on YouTube or our local copy (mp4) starting at 23:28.

    http://fixcas.com/cgi-bin/go.py?2014d.Cavoukian

    Freedom for Children’s Aid Information

    July 11, 2014

    Children’s Aid Societies

    In my 2004, 2009, and 2012 Annual Reports I recommended that Children’s Aid Societies, which provide services for some of our most vulnerable citizens – children and youth in government care, be brought under FIPPA. I am disheartened by the complete lack of action to ensure transparency and accountability by these organizations that received significant public funding. As part of the modernization of the Acts, I call on the government to finally address this glaring omission and ensure that Children’s Aid Societies are added to the list of institutions covered.

    #3. And since 2012 I’ve very aggressively been working to FOI attack the credibility and reputations of ON’s “justice system participants.” We’ve disseminated many of the records we’ve obtained to the fixcas.com website, the Ontario Civil Liberties Association’s fb pg. and my own group fb pg.:

    https://www.facebook.com/groups/661585327286972/files/
    Scrutinizing the Justice System Participants: Freedom of Information and Petition work ON CAN

    #4. This might be one of the most significant records we’ve obtained so far’the 1994 class action lawsuit settlement agreement between the Grandview Survivors Support Group and Ontario “the queen in right of”: http://www.fixcas.com/cgi-bin/go.py?2014a.Grandview

    Grandview Training School for Girls

    February 25, 2014

    The Grandview Training School for Girls opened in 1932, and was formally known as the Ontario Training School for Girls – Galt. It was located at what is now Cambridge, Ontario.

    Through freedom of information Chris Carter has obtained a copy of the settlement between the Grandview Survivors Support Group and the Government Of Ontario (pdf), ratified on June 30, 1994. Much of the document relates to processes. The penultimate page lists the abuses suffered by the residents:

    Best wishes Dr. Cavoukian. I’m among many who greatly appreciate your work. CC

  • Edgar Devere

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