I participated on a panel with Freedom of Information and Access to Information luminaries Daniel Metcalfe (American University law professor and head of their Collaboration on Government Conspiracy Center), Andrea Neill, (Assistant Information Commissioner for the Office of the Information Commissioner of Canada), and Miriam Nisbet (Director of the United States Office of Government Information Services) at the American Bar Association’s Annual Meeting. Our moderator was Prof. Jim O’Reilly (University of Cincinnati and author of a gazillion books on administrative, products liability, and other topics). Talk about being totally out of my league!!
In any event, I offered some suggestions to the audience on where you might start research on either the U.S. FOIA or the Canadian ATIA legislation so that lawyers from the opposite side of the border might have a starting point. The paper I submitted is provided below.
Freedom of Information Resources in Canada and the U.S.
The U.S. and Canada share many similarities in the resources available for freedom of information act requests. The Access to Information Act (ATIA) can be accessed at the Canadian Legal Information Institute (CanLII) with all supporting regulations. CanLII has a point-in-time comparison function so that you can compare two versions of the Act side-by-side to see what parts of the law were in force at any given time. Supporting regulations are also listed and there is a citator feature that links to cases citing the Act, by specific subsection.
The Freedom of Information Act (FOIA) is codified at 5 U.S.C. §552 but the Government Printing Office’s Federal Digital System (FDSys) has additional information on supporting laws, including executive orders, relevant Statutes at Large (public laws) for amendments, and a cross-reference to government documents.
Canadian provinces have access to information laws, separate from the Federal statute. The Canadian Privacy Commissioner has links to all of the relevant provincial statutes, as well as contact information for the provincial department responsible for oversight of the law. U.S. states have a wide variety of open meetings and open records laws, many of which have been identified and linked to by the National Freedom of Information Coalition’s Web site.
Each Canadian agency has a coordinator for information access and privacy. The Treasury Board of Canada Secretariat maintains a current list, which can be browsed by agency name. The Treasury Board has also created an Access to Information Toolkit for specialists. There are links to forms, including a personal information request form (what information does the government hold on an individual) as well as a record correction form. The currency of information on this site varies. The list of coordinators was updated at the end of June 2011, for example, but the implementation plans were last updated in 2008 and a fact sheet was last touched in 2005. A researcher would probably want to contact the Treasury Board for additional information.
The Department of Justice has an interesting resource for identifying FOIA requests made to U.S. departments. Under the Data tab on their Web site, you can run custom reports that retrieve results based on the annual reporting done by U.S. agencies. The Canadian Information Commissioner shows a selection of requests made to it under the ATIA and you can see what request was made and, if you want to get the same information, you can request the information directly from the Web site. There is no comparable site in Canada that shows aggregates agency data from all agencies. As a recent study noted, Canada’s freedom of information system is largely paper based, both in making requests and in payment.
The Canadian Information Commissioner has a number of tools you can use for staying current on the agency’s activities, both practical and administrative. The Commissioner’s Web site has RSS feeds available so that you can get immediate updates on practice directions, new investigations, and recent court cases. There is also an investigator’s guide that outlines the laws exceptions and procedures, and has a lexicon that is useful for getting accustomed to the terms in the ATIA. In particular, the lexicon lists the leading case law under the heading case law.
The Treasury Board publishes a bulletin on the ATIA and Privacy Act that contains detailed statistical information on what types of requests were made and which exclusions were invoked. These statistical tables include cumulative statistics from 1983 through March 2010. They also publish a bulletin that outlines sources of information. This provides a detailed description of agencies, including Crown corporations, publicly owned entities that run like private businesses. Each entry also lists the types of information that the organization holds.
One of the leading FOI resources in Canada is Heenan Blaikie’s Accessprivacy.ca, an online subscription site that the law firm has created to track FOI and privacy issues.15 In addition to the paid subscription to the database, you can sign up for a free e-mail update called Communique. Accessprivacy.ca tracks the ATIA and also the provincial freedom of information and protection of privacy laws (FIPPA and Municipal FIPPA). Other sources for current commentary on Canada’s information access laws are continuing education publications from the Canadian Bar Association and the provincial and territorial lawyer regulators, known as law societies.