Tag Archives: Teresa Scassa

Crosspost: Canada’s Information Commissioner Tables Recommendations to Overhaul Access to Information Act

The Access to Information Act was first passed by parliament 1983 (Photo courtesy of en.wikipedia.org).

The Access to Information Act was first passed by parliament in 1983 (Photo courtesy of en.wikipedia.org).

This post is cross-posted with permission from Teresa Scassa, from her personal blog. Scassa is the Canada Research Chair in Information Law at the University of Ottawa.

By Teresa Scassa

Canada’s Access to Information Act is outdated and inadequate – and has been that way for a long time. Information Commissioners over the years have called for its amendment and reform, but generally with little success. The current Information Commissioner, Suzanne Legault has seized the opportunity of Canada’s very public embrace of Open Government to table in Parliament a comprehensive series of recommendations for the modernization of the legislation.

The lengthy and well-documented report makes a total of 85 recommendations. This will only seem like a lot to those unfamiliar with the decrepit statute. Taken as a whole, the recommendations would transform the legislation into a modern statute based on international best practices and adapted both to the information age and to the global movement for greater government transparency and accountability.

The recommendations are grouped according to 8 broad themes. The first relates to extending the coverage of the Act to certain institutions and entities that are not currently subject to the legislation. These include the Prime Minister’s Office, offices of Ministers, the bodies that support Parliament (including the Board of Internal Economy, the Library of Parliament, and the Senate Ethics Commissioner), and the bodies that support the operations of the courts (including the Registry of the Supreme Court, the Courts Administration Service and the Canadian Judicial Council). A second category of recommendations relates to the need to bolster the right of access itself. Noting that the use of some technologies, such as instant messaging, may lead to the disappearance of any records of how and why certain decisions are made, the Commissioner recommends instituting a legal duty to document. She also recommends adding a duty to report any unauthorized loss or destruction of information. Under the current legislation, there are nationality-based restrictions on who may request access to information in the hands of the Canadian government. This doesn’t mean that non-Canadians cannot get access – they currently simply have to do it through a Canadian-based agent. Commissioner Legault sensibly recommends that the restrictions be removed. She also recommends the removal of all fees related to access requests.

The format in which information is released has also been a sore point for many of those requesting information. In a digital age, receiving information in reusable digital formats means that it can be quickly searched, analyzed, processed and reused. This can be important, for example, if a large volume of data is sought in order to analyze and discuss it, and perhaps even to convert it into tables, graphs, maps or other visual aids in order to inform a broader public. The Commissioner recommends that institutions be required to provide information to those requesting it “in an open, reusable, and accessible format by default”. Derogation from this rule would only be in exceptional circumstances.

Persistent and significant delays in the release of requested information have also plagued the system at the federal level, with some considering these delays to be a form of deliberate obstruction. The Report includes 10 recommendations to address timeliness. The Commissioner has also set out 32 recommendations designed to maximize disclosure, largely by reworking the current spider’s web of exclusions and exemptions. The goal in some cases is to replace outright exclusions with more discretionary exemptions; in other cases, it is to replace exemptions scattered across other statutes with those in the statute and under the oversight of the Information Commissioner. In some cases, the Commissioner recommends reworking current exemptions so as to maximize disclosure.

Oversight has also been a recurring problem at the federal level. Currently, the Commissioner operates on an ombuds model – she can review complaints regarding refusals to grant access, in adequate responses, lack of timeliness, excessive fees, and so on. However, she can only make recommendations, and has no order-making powers. She recommends that Canada move to an order-making model, giving the Information Commissioner expanded powers to oversee compliance with the legal obligations set out in the legislation. She also recommends new audit powers for the Commissioner, as well as requirements that government institutions consult on proposed legislation that might affect access to information, and submit access to information impact assessments where changes to programs or activities might affect access to information. In addition, Commissioner Legault recommends that the Commissioner be given the authority to carry out education activities aimed at the public and to conduct or fund research.

Along with the order-making powers, the Commissioner is also seeking more significant consequences for failures to comply with the legislation. Penalties would attach to obstruction of access requests, the destruction, altering or falsification of records, failures to document decision-making processes, and failures to report on unauthorized loss or destruction of information.

In keeping with the government’s professed commitments to Open Government, the report includes a number of recommendations in support of a move towards proactive disclosure. The goal of proactive disclosure is to have government departments and institutions automatically release information that is clearly of public interest without waiting for an access to information request that they do so. Although the Action Plan on Open Government 2014-2016 sets goals for proactive disclosure, the Commissioner is recommending that the legislation be amended to include concrete obligations.

The Commissioner is, of course, not alone in calling for reform to the Access to Information Act. A private member’s bill introduced in 2014 by Liberal leader Justin Trudeau also proposes reforms to the legislation, although these are by no means as comprehensive as what is found in Commissioner Legault’s report.

In 2012 Canada joined the Open Government Partnership, and committed itself to an Action Plan on Open Government. This Action Plan contains commitments grouped under three headings: Open Information, Open Data and Open Dialogue. Yet its commitments to improving access to information are focussed on streamlining processes (for example, by making it possible to file and pay for access requests online, creating a virtual library, and making it easier to search for government information online.) The most recent version of the Action Plan similarly contains no commitments to reform the legislation. This unwillingness to tackle the major and substantive issues facing access to information in Canada is a serious impediment to realizing an open government agenda. A systemic reform of the Access to Information Act, such as that proposed by the Information Commissioner, is required.

What do you think about Canada’s Access to Information Act? Let us know on twitter @geothinkca.

If you have thoughts or questions about this article, get in touch with Drew Bush, Geothink’s digital journalist, at drew.bush@mail.mcgill.ca.

Geothink Video Interview 1: Teresa Scassa, University of Ottawa

By Drew Bushfaculty_olympics

This Geothink Video Interview brings us a closeup look at the work and ideas of Teresa Scassa, Canada Research Chair in Information Law at the University of Ottawa. In particular, we talk with her about her views on Canada’s Action Plan for Open Government 2.0, problems with open access under the plan, the idea of making government data open by default and the role of academics (like those in Geothink) in making government more transparent.

Find the interview below. As always, all thoughts and comments are welcome. And, of course, stay tuned for more videos and podcasts soon on Geothink.ca.

If you have thoughts or questions about the video, get in touch with Drew Bush, Geothink’s digital journalist, at drew.bush@mail.mcgill.ca.

Spotlight on Recent Publications: Teresa Scassa at the Intersection of Intellectual Property Rights and Municipal Transit Data

By Drew Bush


Teresa Scassa is Canada Research Chair in Information Law at the University of Ottawa.

This story was originally reported on Teressa Scassa’s personal blog which you can find here.

In a paper just published in the Fordham Urban Law Journal, Geothink researcher Teresa Scassa argues that the actual laws governing intellectual property (IP) rights are often surprisingly irrelevant in disputes over rights to municipal transit data. Instead, she finds that being in a position to make a claim to IP rights is often more important than actually having a good claim.

“How people decide to interact with each other is more important than what their precise legal rights might be,” Scassa, the Canada research chair in information law at University of Ottawa, wrote in an e-mail to Geothink.ca. “Often, to understand the precise boundaries of those rights it is necessary to litigate and one or both parties may lack the resources to go to court. So, in those circumstances, parties may reach an understanding of how they will set the boundaries of their relationships.”

Her paper, entitled Public Transit Data Through an Intellectual Property Lens: Lessons About Open Data, examines some of the challenges presented by the transition from ‘closed’ to open data within the municipal context. She completed the paper as part of a Geothink project examining open data in a concrete context that’s particular to municipalities.

“In the municipal transit data context, there was generally an imbalance of resources between developers and municipalities, and there was little desire on either part to go to court,” she added. “Nevertheless, in the early days, municipal transit authorities asserted their IP rights using cease and desist letters. This assertion of IP rights was met with arguments about the need for open data, and eventually compromises were reached around open data that shifted over time, and varied from one municipality to another.”

In the paper, she examines how these legal developments have impacted the use of real-time transit data by developers seeking to make use of this data in digital applications and corporations hoping to add value to products and services they offer. In particular, the paper covers three types of data: 1) Route maps; 2) Static data (such as bus timetables that only change seasonally); 3) And, real-time GPS data generated by units installed on transit vehicles.

A number of municipalities exerted their IP rights over such data because of concerns that ranged from ensuring its quality and authenticity to preserving the ability to make data available on a cost-recovery basis.

“The emerging open data movement shifted some of these concerns and created a new set of expectations and practices around open municipal transit data,” she wrote in her e-mail. “As data become more complex (with the advent of real-time GPS data, for example) the IP issues shifted and changed again, raising new questions about open data in this context. This is where the next phase of my research will take me.”

To find out more about Teresa Scassa’s work, visit her personal blog here or follow her on Twitter @teresascassa. For more on IP, check out another of her recent papers (written with Univeristy of Ottawa doctoral student Haewon Chung) that analyzes various types of volunteer citizen science activities to determine whether they raise legal questions about IP ownership.

Find a link to the article along with its abstract below.

Public Transit Data Through an Intellectual Property Lens: Lessons About Open Data

This paper examines some of the challenges presented by the transition from ‘closed’ to open data within the municipal context, using municipal transit data as a case study. The particular lens through which this paper examines these challenges is intellectual property law. In a ‘closed data’ system, intellectual property law is an important means by which legal control over data is asserted by governments and their agencies. In an ‘open data’ context, the freedom to use and distribute content is a freedom from IP constraints. The evolution of approaches to open municipal transit data offers some interesting examples of the role played by intellectual property at every stage in the evolution of open municipal transit data, and it highlights not just the relationship between municipalities and their residents, but also the complex relationships between municipalities, residents, and private sector service providers.

If you have thoughts or questions about the article, get in touch with Drew Bush, Geothink’s digital journalist, at drew.bush@mail.mcgill.ca.

Privacy Challenges in Open Government

By Teresa Scassa

The public-oriented goals of the open government movement promise increased transparency and accountability of governments, enhanced citizen engagement and participation, improved service delivery, economic development and the stimulation of innovation. In part, these goals are to be achieved by making more and more government information public in reusable formats and under open licences.

The Canadian federal government has committed to open government, and is currently seeking input on its implementation plan. The Ontario government is also in the process of developing an open government plan, and other provinces are at different stages of development of open government. Progress is also occurring at the municipal level across Canada, with notable open data and/or open government initiatives in Vancouver, Toronto, and Ottawa (to give a few examples).

Open government brings with it some privacy challenges that are not explicitly dealt with in existing laws for the protection of privacy. While there is some experience with these challenges in the access to information context (where privacy interests are routinely balanced against the goals of transparency and accountability), this experience may not be well adapted to developments such as open data and proactive disclosure, nor may it be entirely suited to the dramatic technological changes that have affected our information environment.

In a recent open-access article, I identify three broad privacy challenges raised by open government. The first is how to balance privacy with transparency and accountability in the context of “public” personal information (for example, registry information that may now be put online and broadly shared). The second challenge flows from the disruption of traditional approaches to privacy based on a collapse of the distinctions between public and private sector actors. The third challenge is that of the potential for open government data-even if anonymized-to contribute to the big data environment in which citizens and their activities are increasingly monitored and profiled.

I invite you to have a look at this article, which is published in (2014) 6 Future Internet 397-413.

Teresa Scassa, Canadian Research Chair in Information Law

Re-identification Risk and Proactive Disclosure of Data for Open Government: Lessons from the Supreme Court of Canada?

By Teresa Scassa

One of the challenges with the proactive disclosure of government data, and with open data more generally, is the obligation that governments have to not disclose personal information. This challenge is made more acute by the fact that the definition of “personal information” is, generally speaking, “information about an identifiable individual”.

Courts in Canada have said that identifiability is not considered solely in the context of the particular data set in question – information is personal information if it can lead to the identification of an individual when it is matched with information from virtually any other source.

The Supreme Court of Canada has just released a decision dealing with the issue of whether Ontario’s Ministry of Community Safety and Correctional Services was right to refuse to disclose information relating to the province’s sex offender registry. The concern in this case was that although the applicant sought only data about sex offenders living within the forward sortation areas, indicated by the first 3 letters of a postal code, this information could still be matched with other available information to specifically identify and locate individuals. Although the case deals with the province’s access to information regime, lessons can be extracted that are relevant to both the proactive disclosure of government information and to open data.

For more detail, see my blog post about this case, here: http://www.teresascassa.ca/index.php?option=com_k2&view=item&id=159:re-identification-risk-and-proactive-disclosure-of-data-for-open-government-lessons-from-the-supreme-court-of-canada?&Itemid=80

Teresa Scassa University of Ottawa, Faculty of Law

Privacy Challenges in Open Government

Prof. Teresa Scassa is interested in Privacy Challenges in Open Government and welcomes your input and participation.

The open government movement promises greater access to government information and proactive disclosure of open data. If it unfolds as promised, a growing volume of information will soon flow from governments to individuals and to the private sector. Such information flows will be relatively free of physical and technological barriers, as well as restrictions on reuse. Canada’s federal government has expressed a commitment to open government, and provincial and municipal governments are also committing to varying degrees of openness. The values underlying the open government movement – greater transparency and accountability, and greater citizen engagement in government processes – are crucial to establishing and maintaining a vibrant democracy.

Open government, however, may conflict other important principles such as privacy. Public sector data protection and access to information laws have long sought to balance the need for access to public information with the protection of personal information. Yet these laws may not be adequate to cope with open government policies that move beyond models of access driven by individual requests. This project will explore the extent to which the open government movement may create or exacerbate tensions between the public interest in privacy and the public interest in open, transparent, and accountable government. I will examine three contexts in particular. These are: where already public information containing citizen personal data is made more readily accessible; where information is about both an identifiable individual and something else; and where de-identified information may nonetheless point to individuals as a result of data matching activities.

You can reach Prof. Scassa at teresa.scassa@uottawa.ca.

Canada’s Open Government Licence V2.0 Is Released



Written by Teresa Scassa

Read more posts by Teresa @ http://www.teresascassa.ca/

With little fanfare, the Canadian government has released its much awaited, newly revised Open GovernmentLicence. The previous version that had been available on its Open Data site was a beta version on which public comments were invited. The government has also published its Open Government Licence Consultation Report, which summarizes and discusses the comments received during the consultation process.

The revised version of the licence is an improvement over its predecessor. Gone is the claim to database rights which do not exist in Canada. (These rights do exist in the UK, the Open Government Licence of which was a template for the Canadian licence). The new licence also discards the UK term “personal data” and replaces it with “personal information”, and it gives this term the meaning ascribed under the federal Privacy Act. The language used in the licence has been further simplified,making it even more accessible.

It should be noted that Alberta’s new open government licence – released as part of the launch of its open government portal earlier this year – is very similar to V2.0 of the federal government licence. There are some minor formatting differences, and a few changes in wording, most of which can be explained by the different jurisdiction (for example, the definition of “personal information” refers to Alberta’s Freedom of Information and Protection of Privacy Act). The similarities between the two licences are no coincidence. Although the Alberta licence was made public prior to the release of the federal government’s V2.0, work has been going on behind the scenes to move towards some form of federal/provincial consensus on the wording of open government licences with a view to ensuring that there is legal interoperability between data sets released by different governments in Canada. The efforts to reduce barriers to interoperability (whether legal or technical) are important to the ability of Canadians to work with and to integrate different data sets in new and innovative ways. Thus not only is the COGL V2.0 to be welcomed, so are the signs that cooperation and coordination may lead to a greater legal interoperability of open government licences across Canada.