Key Messages Nigeria July 2011

Key Messages Congratulations to the Nigerian Government for adopting this important piece of legislation. Your President has demonstrated tremendous leadership. Freedom of Information is recognized internationally as a stepping stone for increased transparency and accountability. Almost 90 countries in the world have adopted a similar law. Nigeria is a welcome addition to this community. Increased transparency has demonstrated again and again its value in: –Supporting democratic institutions; –Driving social and economic development; and –Enhancing service delivery. Based on Canada’s experience of over 28 years, we have learned that having a law is just the beginning. –It needs to be nurtured and supported at the highest levels. –Media and civil societies need to continue to play a major role in holding the government to account. Understanding your country’s context and tailoring your approach to your own needs and aspirations, is the best way of achieving success.

Implementing Freedom of Information Nigeria July 2011

A Tailored Approach Numerous factors may influence the enforcement model chosen, and several further considerations will likely determine its overall effectiveness and success in enforcing the right to information. Laura Neuman, World Bank Institute, Enforcement Models: Content and Context, 2009.

Access to Information in Canada

Right of Access Access to information is recognized as a quasi- constitutional right by the Supreme Court of Canada. The purpose of access to information legislation is to facilitate democracy by helping to ensure that citizens have the information required to participate meaningfully in the democratic process and that politicians and bureaucrats remain accountable to the citizenry. Act supersedes all other Canadian legislation unless expressly stated otherwise. Right of access is limited to Canadians, permanent residents and people and corporations present in Canada.

Presumption of Openness Access to Information Act is based on a presumption in favour of disclosing government-held information. It provides “a right of access to information in records under the control of a government institution.” It is “not intended to limit in any way access to the type of government information that is normally available to the general public.”

Access to Information Act and Privacy Act Personal information is an exemption under the Access to Information Act (ATIA). For purposes of the ATIA, personal information is defined in the Privacy Act (PA). Disclosure of personal information under the ATIA is authorized if it is in accordance with the PA. 19.(1)Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under this Act that contains personal information as defined in section 3 of the Privacy Act. Where disclosure authorized (2) The head of a government institution may disclose any record requested under this Act that contains personal information if (a) the individual to whom it relates consents to the disclosure; (b) the information is publicly available; or (c) the disclosure is in accordance with section 8 of the Privacy Act.

Coverage of the Access to Information Act Applies to -Departments and agencies -Crown corporations and Officers of Parliament recently added by the Federal Accountability Act Does not apply to -Parliament -Ministers’ offices -Courts

Exceptions to Access – Exemptions “Necessary exceptions to the right of access should be limited and specific.” Categories of exemptions -Mandatory -Discretionary Tests -Injury -Class Explicit public interest overrides for personal information and third party information

Exceptions to Access

Exceptions to Access – Exclusions Published material or material available for purchase, library and museum material, and material placed in National Archives Information of the Canadian Broadcasting Corporation that relates to its journalistic, creative or programming activities (general administration information covered) Information of Atomic Energy of Canada Limited (general administration information covered) Cabinet confidences, e.g. memoranda, discussion papers, agenda, briefing materials and draft legislation

Time Limited Exemptions and Exclusions Law enforcement- 20 years Personal information (person dead)- 20 years Advice to government- 20 years Intent to publish- 90 days Cabinet documents- 20 years

Key Players Head of government institution -Delegates authority to the Access to Information and Privacy Coordinator President of Treasury Board “Designated Minister” - Issues government-wide policies and guidelines - Reviews records management -Compiles Info Source – directory of government institutions and bulletins containing statistics and summaries of jurisprudence Minister of Justice - Amends the legislation - Advises and represents the government in legal matters Privy Council -Certifies Cabinet confidences

Roles and Responsibilities within Institutions Access to Information Coordinators Senior Officials Program Officers Legal Advisors Communications Officers

Training and Awareness Institutional – Political level – Bureaucratic level Access to information administrators Program and service officers Accreditation courses Public – Role of government – Role of civil society

Information Management Library and Archives of Canada Act – Scheduled institutions similar to those subject to the Access to Information Act Information Management Policy, Treasury Board The objective of this policy is to achieve efficient and effective information management to support program and service delivery; foster informed decision making; facilitate accountability, transparency, and collaboration; and preserve and ensure access to information and records for the benefit of present and future generations. Challenges of information in electronic formats, e.g. BlackBerry “pin-to-pin”

Processing Requests 30 calendar days from receipt of request “Reasonable” extension possible, e.g. volume and consultations Must release any part of document or information not exempt or excluded Produce document or cite exemptions – Notify requester of right to complain

Fees -Application -Search and preparation -Reproduction - Computer $16.50 per minute for cost of central processor and locally attached devices $5 per person per quarter hour for programming No fees -5 free hours search and preparation -Shipping -Filing and refiling records -Waiver if less than $25 -Waiver if public interest in disclosure

Processing Systems Provide case management – Log and process cases for requests, appeals and investigations Apply redactions – Electronically and accurately sever records Task program areas – Communicate electronically with record holders Communicate with requesters – Generate standard correspondence Compile statistics – Cumulate workload statistics for institutional and government-wide reports

Information Commissioner of Canada Officer of Parliament – 7 year appointment subject to Parliamentary scrutiny Protects rights of requesters under the Access to Information Act Strong investigative powers, including issuing subpoenas, search and seizure of documents, conducting hearings and administering oaths Resolves complaints through mediation and suasion No order making powers – orders issued pursuant to judicial review Mandate does not include public education or research

Office of the Information Commissioner Complaints Resolution and Compliance -Investigates individual complaints about the processing of access requests -Conducts dispute resolution activities and makes formal recommendations to institutions, as required -Assesses institutions’ compliance with their obligations -Carries out systemic investigations and analysis Legal Services -Represents the Commissioner in court -Provides legal advice on investigations, legislative issues and administrative matters -Monitors cases having potential litigation ramifications for access to information -Develops customized reference tools for investigators Corporate Services -Human and financial resources management -Information and technology management -Communications and Parliamentary liaison -Access to Information and Privacy coordination

Types of Complaints Refusals to provide access to requested records Fees Time extensions Language of records Format of records Any other matters regarding access to records

Public Awareness Reports to Parliament - Annual Reports - Special Reports and Report Cards Advises Parliament - Appearances before the Standing Committee on Access to Information, Privacy and Ethics Intervenes in judicial review of significant cases

Federal Court Any person who has been refused access to a record or a part thereof may, once the Information Commissioner’s report of findings in respect of the refusal have been received, apply to the Court for review. Commissioner can also apply for review or act on behalf of an access requester with the requester’s consent. Federal Court reviews the institution’s decision, not the Commissioner’s recommendations. Burden of proof lies with the party opposing disclosure of the records. Generally, this would be the head of an institution. If the Court finds that the head of an institution was not authorized to refuse disclosure, it will order that the records, or parts thereof, be released.

State of Access to Information in Canada Access to Information Act has not changed significantly over the past 28 years Numerous calls for reform since adoption Several in-depth policy reviews conducted To date, piecemeal reform generated by triggering events but no complete review of the Act

Significant Amendments Sanctions for obstructing right of access -Provision calls for fines of up to $10,000 and jail terms of up to 2 years for anyone who interferes with the right of access to information by destroying, falsifying or concealing a record or directing any person to do so. Duty to Assist -Provision imposes a positive duty on institutions to make every reasonable effort to: Assist persons, without regard to their identity, in connection with their requests for access to records under the control of the institution; Respond to the request accurately and completely; and Subject to regulations, provide access to the record in the format requested.

Looking to the Future – Challenges Most significant change – information technology Network federalism Public-private sector partnerships Global, knowledge-based service economy Expectations of Canadians -Culture of service – most government information should be readily available and free -New generation of users born in electronic age

Freedom of Information Oversight What Model to Follow? Nigeria July 2011

Oversight in Context Based on my experience, the enhancement of the authority of oversight bodies, while desirable and necessary, is unlikely to achieve good governance. That goal only will be realized when the embrace of rule of law ideals, transparency and integrity comes from within the executive branch of government, not through the outside enforcement of the legislative or judicial branch or their various offices and officers. Lorne Sossin, Dean of Osgoode Hall Law School: The Future of Administrative Law and Good Governance in Nigeria, June 2011.

International Principles of Oversight Article 19, Principle 5 Requests for information should be processed rapidly and fairly and an independent review of any refusals should be available. Atlanta Declaration, Key Principle #4k The requester should be guaranteed a right to appeal any decision, any failure to provide information, or any other infringement of the right of access to information to an independent authority with the power to make binding and enforceable decisions, preferably an intermediary body such as an Information Commission(er) or Specialist Ombudsman in the first instance with a further right of appeal to a court of law.

Principles of Independence Non-partisan appointment process Accountability to legislative body Objective funding mechanism Arm’s length relationship to public bodies with the authority to promote compliance and influence change

Oversight Models Ombudsperson –Commissioner has the power to investigate and make recommendations to government institutions but not to render binding decisions. Hybrid –Commissioner’s recommendations are binding on government institutions with respect to administrative matters such as fees, fee waivers, extensions of time, delays and formats. –Only the court has the power to order the disclosure of records. Full order-making –Commissioner has the power make orders with respect to administrative matters such as fees, fee waivers, extensions of time, delays and formats, as well as to order the disclosure of records.

Factors Determining Choice of Oversight Models “Numerous factors may influence the enforcement model chosen, and several further considerations will likely determine its overall effectiveness and success in enforcing the right to information.” Laura Neuman, World Bank Institute, Enforcement Models: Content and Context, Political culture Maturity of bureaucratic structures Legal framework Economic environment Social environment

Canada: The Perfect Case Study

Information Commissioner of Canada Officer of Parliament – 7 year appointment subject to Parliamentary scrutiny Protects the rights of requesters under the Access to Information Act Strong investigative powers, including issuing subpoenas, search and seizure of documents, conducting hearings and administering oaths Resolves complaints through mediation and suasion No order-making powers – orders issued pursuant to judicial review Mandate does not include public education or research

Compliance Continuum

Federal Court of Canada Individuals can apply to the Federal Court only when institutions have refused access to records or parts of records. Applications for judicial review can be made only after the Information Commissioner’s report of findings have been issued. Commissioner can also apply for review or act on behalf of a requester with the requester’s consent. Federal Court reviews the institution’s decision, not the Commissioner’s recommendations. Burden of proof lies with the party opposing disclosure. If the Court finds that the head of an institution was not authorized to refuse disclosure, it will order that the records, or parts thereof, be released.

Freedom of Information: The Power of Civil Society Nigeria July 2011

Congratulations on Joining the Global Freedom of Information Community The FOI advocacy was even more exciting because it originated as a citizen-led demand and was for the most part led by ordinary folks whose extraordinary resilience in the face of serial reversals ultimately earned the respect of good friends amongst the high and mighty... Ultimately, though, it was a tale about how citizens – even those who don’t know one another – can become friends in a common cause. Chidi Odinkalu, “Nigeria’s Freedom of Information Law: How Friends Launched a Movement,” June 3, 2011.

Canada’s Experience Access to Information Act and Privacy Act were proclaimed on July 1, Act is fundamentally sound in concept and principle. After 28 years, it is in need of modernization to reflect the current political, social, economic and technological environment. Overall the Act works, although many challenges remain. Based on experience, having a law is just the beginning. –It requires strong leadership at the highest levels of government. –Media and civil societies need to be vigilant and play a major role in holding the government to account.

Canada’s Experience: Right of Access Access to information is recognized as a quasi- constitutional right by the Supreme Court of Canada. The purpose of access to information legislation is to facilitate democracy by helping to ensure that citizens have the information required to participate meaningfully in the democratic process and that politicians and bureaucrats remain accountable to the citizenry. Act supersedes all other Canadian legislation unless expressly stated otherwise. Right of access is limited to Canadians, permanent residents and people and corporations present in Canada.

Canada’s Experience: Presumption of Openness Access to Information Act is based on a presumption in favour of disclosing government-held information. It provides “a right of access to information in records under the control of a government institution.” It is “not intended to limit in any way access to the type of government information that is normally available to the general public.”

Canada’s Experience: Requests

Canada’s Experience: Who uses the Act? Businesses – 48.5% Public – 35.2% Media – 10.5% Organizations – 4.4% Academics – 1.3% (Info Source Bulletin , Treasury Board Secretariat)

Canada’s Experience: Exceptions to Access

Canada’s Experience: Completing Requests

Canada’s Experience: Delays

Challenges: Commission of Inquiry into the Deployment of Canadian Forces to Somalia Canadian Broadcasting Corporation reporter requested access to documents regarding mistreatment of prisoners by Canadian Forces. Documents were altered before being released to make them agree with information released earlier. Question of whether Chief of Staff had known about the altering and if he bore responsibility even if ignorant of subordinates’ actions. Clerk in department discovered collecting Somalia-related documents to be destroyed. Chief of Staff concurred that there had been documents proving attempts to cover up details of mistreatment.

Challenges: Commission of Inquiry on the Blood System in Canada Investigation of allegations that the system of government, private and non-governmental organizations responsible for supplying blood and blood products to the health care system had allowed contaminated blood to be used. Information Commissioner found evidence that Canadian Blood Committee records were destroyed to thwart the public right to information. “The public must have access to information about policy, management, and operations of the blood supply system and be represented in the decision- making...” (Justice Horace Krever, 1997)

Strengthening the Act: Offences Access to Information Act, Section 67.1 (1) No person shall, with intent to deny a right of access under this Act, (a) destroy, mutilate or alter a record; (b) falsify a record or make a false record; (c) conceal a record; or (d) direct, propose, counsel or cause any person in any manner to do anything mentioned in any of paragraphs (a) to (c). (2) Every person who contravenes subsection (1) is guilty of (a) an indictable offence and liable to imprisonment for a term not exceeding two years or to a fine not exceeding $10,000, or to both; or (b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding six months or to a fine not exceeding $5,000, or to both.

Challenges: Commission of Inquiry into the Sponsorship Program and Advertising Activities Globe and Mail reporter requested information regarding the management of the federal sponsorship program, how advertising agencies were selected, who received funds and how they were used. Justice Gomery, Restoring Accountability –“An appropriate access to information regime is a key part of the transparency that is an essential element of modern public administration.” –Senior bureaucrats and ministers sometimes fail to “respect the spirit and intent” of the law, meeting requests for information with stonewalling and delay. –Failure to document decisions should be grounds for discipline.

Strengthening the Access to Information Act: Federal Accountability Act “Duty to assist” imposes a duty on institutions, without regard to the identity of the person, to make every reasonable effort to: –Assist persons in connection with their requests for access to records; –Respond to their requests accurately and completely; and –Provide access to the record in the format requested. Added Crown corporations, foundations and other government funded bodies to coverage of the Act, including the Canadian Broadcasting Corporation Added additional exemptions and exclusions to protect information held by institutions, e.g. information under the control of the Canadian Broadcasting Corporation that “relates to its journalistic, creative or programming activities, other than information that relates to its general administration.”

Oversight: Canadian Newspaper Association National Audit Annual audit comparing the performance of institutions in responding to access to information requests Includes governments at the federal, provincial, territorial and municipal levels Requests devised for each level, e.g. –Records showing the number and cost of cell phones used by employees –Media lines for high profile events –Records of attendance by councilors at municipal council meetings Grades based on speed and completeness of disclosure

Oversight: Canadian Newspaper Association Do secret rules lead to delays? CNA complained that media requests were unfairly delayed. Investigation demonstrated that: –Requests labeled “sensitive”, “of interest”, “amber light” or marked for “special handling” delayed and influenced responses; and –Requests from Parliamentarians, organizations, academics and lawyers were also delayed. Recommendations included: –Special handling should not create additional levels of approval; –Content of the request should be the only factor considered; –Institutions should narrowly define requests deemed of interest; –Source of the request should not be identified outside of the access to information office; and –Communications requirements should not delay the release of information.

Oversight: Canadian Journalists for Free Expression Review 2010/2011 “How access to information fails journalists” –Increased delays in release of information –Disclosure not complete –Government ruled in contempt of Parliament for failure to produce information about major spending programs –Evidence of political interference in access to information process “Access NOT to Information” –Culture of concealment –Access wait times getting worse –Shrinking of information –Refusing to release information

July 20, 1969 to July 20, 2011

Proactive Disclosure through Routine Disclosure Reactive disclosure: Information is disclosed only after someone formally requests it Proactive disclosure: Governments decide what information should be routinely disclosed to the public Examples: –Statutory Parliamentary and Parliamentary Committee proceedings Budgets and Main Estimates of institutions –Policy Expenses of Ministers and senior officials Contracts Grants and contributions Position re-classifications –Information released pursuant to Access to Information requests

A Question of Culture

Signaling Change and Fostering Key Attitudes The Task Force recommends that the training of public servants emphasize that: –They are stewards of government information on behalf of Canadians; –The provision of information is an integral part of their job; and –The records they create in the course of their work are records of the Government of Canada, and for the most part can be made public. Instill pride of openness as part of the public service identity. Access to Information: Making it Work for Canadians, Report of the Access to Information Review Task Force, June 2002.

Recipe for Success Leadership Public engagement Partnerships Management of public information Training Evaluation Innovation Funding

Promoting Transparency: A Tailored Approach Nigeria July 2011

Introduction Why ? What ? Where ? When ? How ?

Why ? Accountability Engagement Efficiency Innovation

What ? Understanding your country context... Democratic institutions Political and economic incentives Legal and policy framework Citizens/civil society/media/interests and engagement State of information and communication technologies Controls – privacy, security, policy Other legislative or policy requirement

Where ? Identify your ultimate goal... Modern freedom of information regime –In line with international standards –In line with open government principles Proactive disclosure –Build access mechanisms into the design and implementation stages of all new programs and services –Through consultations identify data sources of interest –Provide information in open, accessible and reusable format –Free or at minimal cost –Due consideration to privacy, confidentiality, security, Crown copyright and all relevant laws

When ?

datalibre.ca urging governments to make data about canada and canadians free and accessible to citizens Stimulus Watch.ca Canadians helping Canadians help government When ?

How ? Leadership Public engagement Partnerships Evaluation Innovation Funding

Opportunity knocks... “Government leaders have before them an opportunity to combine the resourcefulness of online citizens and entrepreneurs with the power of factual data to more effectively achieve their mission. In an information-driven age, the ability of governments to seize this opportunity may ultimately determine whether a government fails or succeeds.” Deloitte: Unlocking Government: How Data Transforms Democracy, 2009

A Recipe for Open Government Nigeria July 2011

Forces of Change Information and communications technologies Globalization of issues and markets Knowledge-based economies Horizontality of government business Public-private partnerships Public expectations Open government movement

The Recipe: Ingredient #1 – Dynamic Leadership Publicly declares a commitment to open government Clearly states objectives Assigns responsibility and accountability for coordination, guidance and deliverables Prescribes timeframes for implementation Provides necessary funds

The Recipe: Ingredient #2 – A Legal and Policy Base Access to Information Act (1983) The purpose of this Act is to... provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public... (subsection 2(1)) This Act is intended to complement and not replace existing procedures for access to government information and is not intended to limit in any way access to the type of government information that is normally available to the general public. (subsection 2(2)) The Act as a “quasi” or “limited” constitutional right –Dagg v. Canada (Minister of Finance), 1997 –The Criminal Lawyers’ Association v. Ontario (Public Safety and Security), 2010 Legislation and policies require regular reviews and updating Open government principles should be anchored in statutory and policy instruments

Proactive Disclosure Reactive disclosure: Information is disclosed only after someone formally requests it Proactive disclosure: Governments decide what information should be routinely disclosed to the public Examples: –Statutory Parliamentary and Parliamentary Committee proceedings Budgets and Main Estimates of institutions –Policy Expenses of Ministers and senior officials Contracts Grants and contributions Position re-classifications

Planning for Access Governments should identify existing data sources and opportunities to proactively disclose information. Institutions should build the concept of “open government” into the design and implementation stages of all new programs and services. The public should be consulted to determine what information they want so that disclosure priorities can be established. Access should be positioned to promote an awareness of access principles and their benefits to institutions. Advanced technologies must be harnessed to support sound information management practices.

The Recipe: Ingredient #3 – Public Engagement Participation of the public through ongoing, broad- based consultations Consultations as the basis for determining what information the public wants and needs to hold government accountable and for establishing priorities Importance of civil society in promoting open government initiatives Requirement for “open dialogue”

The Recipe: Ingredient #4 – Open Access Open standard formats should be employed to permit unlimited use and re-use of information. Information should be available free or at minimal cost. Data should be structured to assist in the discovery, understanding and interpretation of the information. Privacy, security, copyright and language issues need to be addressed and resolved. Governments must establish partnerships with other levels of government, the private sector and non-governmental organizations.

Federal Open Government Initiatives

Canadian International Development Agency

Municipal Open Government Initiatives

datalibre.ca urging governments to make data about canada and canadians free and accessible to citizens Stimulus Watch.ca Canadians helping Canadians help government Grass Roots Initiatives

The Recipe: Ingredient #5 – Performance Measurement Challenge of measuring degree of openness and transparency on key issues, e.g. –National security –Government decision making processes Tools –Internal audits (Federal Accountability Act, 2006) –Reports to Parliament, Report Cards and Special Reports on systemic issues Role of external watchdogs

A “Made-in-Canada” Strategy 1.The Commissioners endorse and promote open government as a means to enhance transparency and accountability which are essential features of good governance and critical elements of an effective and robust democracy. 2.The Commissioners call on the federal and all provincial and territorial governments to declare the importance of open government, including specific commitments for stronger standards for transparency and participation by the public. 3.Governments should build access mechanisms into the design and implementation stages of all new programs and services to facilitate and enhance proactive disclosure of information. 4.Through ongoing consultations with the public, governments should routinely identify data sources and proactively disclose information in open, accessible and reusable formats. Public access to information should be provided free or at minimal cost. 5.In implementing open government policies, the federal and all provincial and territorial governments should give due consideration to privacy, confidentiality, security, Crown copyright and all relevant laws.

A Question of Culture Source: jimborgman.blogspot.com/2008_03_01_archive.html

Federal Government’s Commitment to Open Government The expansion of open government is being pursued through these three main streams:  Open Data, which is about offering Government data in a more useful format to enable citizens, the private sector and non-government organizations to leverage it in innovative and value-added ways.  Open Information, which is about proactively releasing information, including on Government activities, to Canadians on an ongoing basis. By proactively making Government information available, it will be easier to find and more accessible for Canadians.  Open Dialogue, which is about giving Canadians a stronger say in Government policies and priorities, and expanding engagement through Web 2.0 technologies. The Honourable Stockwell Day, President of the Treasury Board March 18, 2011

Throne Speech, June 3, 2011 Our Government will also ensure that citizens, the private sector and other partners have improved access to the workings of government through open data, open information and open dialogue.

Open Government Government leaders have before them an opportunity to combine the resourcefulness of online citizens and entrepreneurs with the power of factual data to more effectively achieve their mission. In an information-driven age, the ability of governments to seize this opportunity may ultimately determine whether a government fails or succeeds. Deloitte: Unlocking Government: How Data Transforms Democracy, 2009

Promoting Openness

Suzanne Legault Information Commissioner of Canada Ross Hodgins Special Advisor OFFICE OF THE INFORMATION COMMISSIONER COMMISSARIAT À L ’ INFORMATION