In an economy predicated on the effective use of information and the ability to innovate, the creation of wealth is rooted in the capacity to learn – to harness the collective intelligence as a source of continuous improvement. From a public sector viewpoint, as information and knowledge are naturally distributed among social actors (and not in the sole possession of the state), and as the socio-economic environment changes (hence calling for continuous adaptation), it becomes imperative for public bureaucracies to engage in a social process of collective learning and information sharing. In other words, whether we are concerned with the general creation of wealth, or more specifically with the improvement of state interventions in society, special attention must be paid to processes of social learning.
Social learning in turn requires effective access to, and the sharing of, existing knowledge by all relevant stakeholders. It also necessitates a fair degree of cooperation in the production of new knowledge, as collegiality helps in taking advantage of economies of scale and scope (by preventing collaborators from reinventing the wheel through the sharing of results) and underpins the processes of learning from experience. These requirements for more advanced collaboration have dramatically transformed the relationships between the state and the rest of society, since government has had to become involved in new and expanding alliances and interactions with other sectors and citizens.
Effective social learning depends a great deal on social cohesion and trust among partners to facilitate such sharing and cooperation. In the absence of trust, basic rules must ensure access to information for all concerned, to prevent the possibility of coordination failures that can slow down the process of learning.
Some failures of coordination may be eliminated through process change – a modification of existing practices (more transparency, for instance), as a way of eliminating obstacles both to information sharing and to the collaboration of different stakeholders within the learning cycle. These modifications usually emerge from experience and evolve mutually coherent expectations and common guideposts. The changing practices are largely a matter of changing organizational cultures.
However, in the longer run, coordination failures may not be eliminated organically by the evolution of practices. Indeed, sometimes the situation gets out of hand as expectations diverge instead of cohering. Consequently, there is often a need to intervene directly – to revisit and modify the rules of the game in order to ensure effective learning. These broader structural changes redefine the existing institutional frameworks impacting on individual behaviour.
One such opportunity lies in the work of the task force created as a result of dissatisfaction with the rules of existing access to information and confrontation between the Office of the Access to Information Commissioner and public sector managers. But such repairs are difficult without agreement on a dominant logic which could serve as a gyroscope in the refitting. This is where the governance perspective is useful by providing the foundation on which new rules of access to information might be built. Governance underlines the importance of effective coordination when resources, information and power are widely distributed.
While information could once be reasonably rationed on a need-to-know basis without much consequence, access to information is a basic necessity in the new information society; without it, social learning is stunted. In new context, information is not only a public good but also a public resource. And the government has some responsibility to ensure that people have access to the information required for optimal learning and governing.
However, as the state learns to deal with the new context, it often faces contradictory pressures. Alongside demands for greater citizen engagement in governance – which means more sharing of information – we find a more critical and distrustful citizenry, creating an environment that reduces trust and encourages natural tendencies to conduct state business in secret. Similarly, alongside demands for better ongoing communication among the state and its partners from other sectors, we also find new forms of organization that could challenge even existing public control over important information associated with public policies and services. In sum, state bureaucracies are operating in a paradoxical environment in which pressures for a more open attitude toward information management co-exist with some real challenges to the actual development of a practice of greater transparency.
Access to Information
Meanwhile, the dividing lines between public bureaucracies and other sectors are progressively blurred, as part of the push for better exchanges of information on the part of the state. Public-private partnerships should not be construed simply as a new version of privatization. At their core, partnerships often reconfigure the relationship between the state and other sectors, with a view to more responsive and better-adapted public interventions. An associated trend in contemporary democracies concerns the need and desire for greater consultation and engagement of citizens in governance. As democracies become more inclusive and participatory, the quantity and quality of information required by the citizenry to do governance work is much greater.
At this point, the consequences of all these tensions are difficult to predict. While in some cases organizations may recognize the central importance of an open policy and practice regarding information exchange, and naturally evolve toward it, they are unlikely to be the norm. Instead, if access to information is to function well, a consensus will be required around some basic principles. Two in particular are already largely recognized in law but require a reiteration to underscore their fundamental importance for contemporary governance. Those principles are:
1. Access by default, with extensive routine disclosure, and
2. Protection against personal harm.
The principle of disclosure by default places the burden of proof on government to demonstrate that some requested information should be kept confidential. Recognizing the social value of the wide dissemination of public information in the emerging information society, governments must start with the premise that citizens can access, upon request, all the information in their possession.
This policy of extensive access should cast a wide net over the current organizational realities and seek to include associated parties and new organizational actors as much as possible. While this extension of access to information principles will require some difficult decisions about typically confidential information (such as commercial secrets), there should be a serious examination of the legal changes required to cover them. The experience of other jurisdictions suggests that, assuming a basic level of political will, technical and legislative means are available for adapting access to information provisions to the new organizational context.
Disclosure vs Personal Harm
This first principle about rights of access to information should also be accompanied by, or embedded in, a broader and explicit information policy which seeks to make government information as widely and easily accessible as possible, without having to resort to access-to-information procedures. The wide and passive diffusion of government information through the use of information technologies, such as the World Wide Web, should be part of a stated policy of routine disclosure of government information. Again, while this probably reflects the spirit of the current law, it is uncertain that it is accurately reflected in the practice of the public service. More than an accountability requirement, this approach derives from a proper understanding of the value of information as a public good and an essential resource for the creation of value in the knowledge economy.
This first principle of broad disclosure is however tempered by the second, which guarantees that excessive transparency does not result in personal harm or unreasonably hamper the ability of the state to operate effectively in the public interest.
In some cases, the disclosure of information can result in harm to individuals. For example, public access to personal information about an individual’s health or financial status can violate his right to privacy and hurt his ability to defend his personal well-being. In this context, the protection of the fundamental rights and basic interests of citizens should be a central concern in establishing the boundaries of access to government information. When the disclosure of state information would harm an individual, public access to this information should be denied.
In the event of a conflict between the public good and individual harm, clear and publicly known procedures for weighing each against the other should be developed. The key requirement here is for a basic test which establishes reasonably clear procedures and standards to be applied by public servants. Of course, there will always be a requirement for a third party, such as an independent commissioner, to make the final arbitration about the correct interpretation of existing rules for weighing the need for privacy against the need for public disclosure. Still, public servants must be trusted to make these complex decisions most of the time.
In this perspective, the emphasis in reforming the access to information framework should be placed on enhancing the capacity of the public service to make these arbitrations fairly and consistently, rather than on a growing reliance on third party arbitration. But the only way to restore mutual trust between citizens and public servants in the management of government information – the kind of trust required by the development of a true culture of transparency and dialogue – is to have them directly engage in a reasoned dialogue about what constitutes the justifiable limits to disclosure in a democratic society. The tribunal model characterized by an extensive and routine reliance on third party arbitration seems, in contrast, like a recipe for on-going conflict and mistrust.
However, protection against personal harm is not the only justifiable limit on access to government information. At times, transparency can also work against the public interest by affecting the soundness of government decision-making processes.
At a certain point, too much transparency will alter the good functioning of policy and managerial processes. For example, for fear of appearing disloyal to some influential constituencies, politicians will alter their behavior and discourse and advisers will be reluctant to advocate politically unpopular views that they nevertheless consider to be in the public interest. For fear that it will make its way into the public domain and that retaliation will follow, the quality of public records might decline as people become hesitant to confine their views to paper.
Luc Juillet is Associate Director of The Centre on Governance and Gilles Paquet is Senior Research Fellow at The Centre on Governance, The University of Ottawa. An extended version of this paper submitted to The Government of Canada is available at: http://www.atirt-geai.gc.ca/