Citizens can use Freedom of Information Legislation
by Ken Rubin
Citizen activists are on the front lines on many current issues. But they are usually well back in line in utilizing and accessing government records where actions are discussed and strategies adopted that affect them.
Finding out information about contaminated sites, poor airline safety, lobbying going on for government contracts, and more requires an information battle plan.
So where to begin if you’ve never tried to pry government records from their protective nests?
Before trying the formal access process, it’s a good idea to search out and call the relevant agency to see what information there is available without having to go through the access rules. Some jurisdictions also produce a registry-index of the type of records available from their agencies.
If the only route to get the data is access legislation, then ascertain whether the data sought is held by an agency covered by the legislation. For instance, not all provincial-territorial acts cover local municipalities or special bodies like hospitals, universities and government funded social service agencies. Or venture into using corporate disclosure codes.
In order to make an access application, what’s crucial is to be as specific as possible. That can include specifying dates, the type of records sought, and a limited subject matter. Remember too that the request is not in the form of questions, but for the provision of records. It doesn’t hurt to state that you are willing to discuss with authorities what you are seeking.
Most jurisdictions want you to put the request to a specific agency with the applicable application fee. Some jurisdictions want the applicant to use forms.
Once you have ended up framing and filing an access application, bear in mind the following factors.
This is not an instant – disclosure process. Records do not have to be released for at least 30 days, with the likelihood that time can extended if there is third party data involved or legitimate consultations required.
It’s an information seeking procedure fraught with many legal exceptions to disclosure. Those exemptions can vary in different jurisdictions. Exemption claims range from commercial confidentiality, policy advice, solicitor-client relations to law enforcement matters. Some matters like cabinet confidences are either totally excluded or exempted from release for many years. Some exemptions are mandatory; others discretionary.
There is in most access legislation unfortunately a limited public health, safety and environment public interest provision that only occasionally overrides some of the exemptions cited. Not all agencies or branches within an agency interpret exemptions the very same way, that is, when they do supply records and when they record their actions.
Fees can be assessed for manual or computer search for and preparation of records, for computer programming and copying. This can add up. It’s best to get an explanation when fees are assessed. Records like emails can for instance be key records of behind the scenes happenings. But they can generate large fee estimates. Narrowing an application can at times reduce fee estimates as can viewing records in person.
It’s in your interest to keep track of progress on requests made through calls and a written log. If there are delays or excessive fees, these are matters you have a right to complain about to an information commissioner or ombudsman in most jurisdictions.
Do not expect a pro-active access service. Only some jurisdictions have designated access officers available. Remember, the art of negotiation is continually part of the process.
Once records (if any) are received, the data should be checked to see if that’s what you wanted. Sometimes, a response comes in bits and pieces through more than one reply. Your appeal rights include complaining about exemptions and incomplete responses. Complaints usually have to made within a specified time period from 30 days to one year. Further review upon information commissioner findings can be made to the courts.
Getting records does not end your work. Using the information received or publicizing the lack of sufficient response are part of an access strategy. You may be able to seek help too from your political representatives or various public interest groups and advocates.
What access can help do is create more transparency for everyone and every group.
It would be of great assistance too if access laws were radically improved. I for one advocate this and have developed a Public Right to Know Act for discussion and action.
I’ve worked with many individuals and groups seeking information. It’s not an easy answer-all process, say, when you are going after getting drug safety data. But it can make the difference and cannot be ignored or left to experts or to those who want more secrecy and little improvements.
“Ken Rubin, one consistent champion of the right to know, is “a prominent, persistent and retentive user of the Act – he is a skilled traveller through the administrative maze of the Act.” Dan Dupuis, former Director of Complaints and Investigations, Office of the Information Commissioner of Canada, December 6, 2007 remarks on the 25th anniversary of Canada’s Access to Information Act.”
Dan Dupuis, former Director of Complaints and Investigations, Office of the Information Commissioner of Canada, December 6, 2007 remarks on the 25th anniversary of Canada’s Access to Information Act.
An information warrior has to be persistent, have analytical and communications skills and be committed to a transparent and just society.