Oslo Conference Summary

Helen Darbishire no freedominfo Europe par secinājumiem konferencē:

The event and communications questions:

1. Information Commissioners and Ombudspersons from 25 countries around the world plus the EU, plus numerous experts, academics, and limited civil society (freedominfo.org, ODAC, and Access Info). More information can be found at: http://www.icic2009.no/

2. There were discussions about communications between the Commissioners as well as with civil society. In the end it seemed better just to talk about it than submit a formal letter. As a result of the discussions in Oslo, the Commissioners formed a working group consisting of the Commissioners of Chile, Mexico, Canada, Slovenia, UK and Germany. This working group will develop a communications infrastructure (website, discussion list) for the Commissioners. The Mexican IFAI has already developed some ideas in this respect and I got the impression that those on the working group are serious in making it function. It will be a space where they can exchange on issues that might need a more closed group (delicate cases where they need advice/comparative information, for example, or political issues). It will also make organising future events easier and will help communication with civil society.

3. The next ICIC will be in 2011 in Canada, the exact location is not decided yet. There will be space for civil society to participate. With enough notice and better communications we should be able to raise funds for this to happen and to get broader representation of civil society at the next meeting.

Substantive discussions

1. Info Commissioner or Ombudsperson? There was an interesting set of working group discussions on whether and information commissioner or ombudsman is the best model. All the working groups agreed that this was the wrong question! Rather, the model should be chosen according to the national legal and democratic culture. What participants did agree on was that the body responsible for oversight of the right to information needs to have sufficient resources and powers. The powers could also vary from country to country: in some legal traditions, the fact that ombudsman offices can only make non-binding recommendations is sufficient to bring about change, in others this means that they are weak – context is everything!

2. "Trust is good, control is better." This maxim (which some ascribe to Lenin) came up quite a few times during the course of the meeting. Sometimes out of concern that that is how current governments are treating their citizens and about the increasing levels of surveillance, and sometimes to argue that strong oversight of access to information is a good thing.

3. With respect to current civil liberties concerns, various speakers including the Georg Apenes, Norwegian Data Protection Commissioner argued that security is a very vague concept when set against long-established democratic values and that there is a serious concern about disproportionate measures being introduced to achieve security – the analogy was catching a shark with a shrimp net and sweeping up everything else in the ocean as well. Bertrand de la Chapelle of Wsis-online.net disputed that achieving security, privacy and openness is a zero sum game and noted that in the world of computer programming open source code is often more secure because patches are developed by the programmers community much more rapidly than for proprietary software.

4. The Proactive dimension of the right came up in many presentations and discussion with a clear sense that this is the next big challenge, both from a rights based approach (thereby relieving the person looking for information of the burden of filing requests and waiting for answers) and also for the pragmatic reasons (reducing the burden on public authorities and facilitating the automatic flow of information). This shift has implications for the way information is stored, particularly anticipating access to entire databases whilst ensuring that exceptions are applied and facilitating public participation by pushing out information needed for engagement in decision-making. Canada’s Assistant Information Commissioner Andrea Neil spoke about recent moves to make documents such as contracts proactively available and the technical challenges of removing private information. She said that there is a need to build disclosure into the structure of services and argued that proactive publication can “restore the [government’s] social contract with the public”. Melanie Ann Pustay from the US Department of Justice spoke about the emphasis on proactive disclosure in the new Obama government and how this requires a mental shift from thinking about applying exceptions (the traditional role of the FOI Office) to thinking creatively about what might be worth releasing.

5. Access to Digital Information / Data Formats: Hans–Gunnar Axberger (Swedish Ombudsman) noted the increasing strain that the information age is putting on the paper-based model of access to information. Canada’s Assistant Information Commissioner Andrea Neil spoke about the huge amounts of information now held by government which is easier to find and retrieve than it was in the old paper-based age and yet there is resistance to making whole databases available. She cited a case in which personal data had been replaced with unique identifiers in order to protect privacy and yet make the information available (the database was a police arrests record and each name was replaced with a number so it was possible to look for patterns of arrests without identifying the individuals). She and others noted the need to update laws to ensure that all information exchanges are appropriately recorded – for example PIN to PIN exchanges between Blackberries; the problem of not keeping records and of “cell phone governance” came up a number of times. Graham Smith from the UK said that one problem is that so much data is recorded electronically that officials no longer know what information they hold and that the burden should not be on the requestor to know this. He recommended that Information Commissioners keep up the with challenge of technology and don’t take “we don’t have that info” at face value. Professor Erik Boe of the University of Oslo law faculty called for the old documents model to be thrown out and for a new generation of access to information laws which put the emphasis on information. He noted that the revisions to Norway’s access to information laws in 2000 and 2006 had not achieved this although there was now a somewhat increased right of access to databases. He argued that more sweeping reforms were needed and that all exceptions relating to documents should be abolished.

6. Burdens vs. benefits of transparency/Overcoming resistance: The challenge of overcoming resistance from public officials and politicians was a repeated issue. Graham Smith of the UK talked about how to structure information in order that public officials don’t have to take apart the haystack (to find a needle) every time there is an information request, thereby reducing the actual burden that FOI can entail. Joanne Caddy stressed that people often focus on the burdens rather than the benefits: there a protests about the burdens of individual requests when they fail to see the less tangible benefits of greater transparency. Juan Pablo Olmedo (Chile) talked about the resistance to sudden requirements under Chile’s new law to disclose information such as salaries or employment evaluations. He noted that public officials found creative ways to resist answering requests, such as citing the risk to their health and safety of having to search for information in dark, humid archives. The new UK Commissioner, Christopher Graham proposed that the Commissioners continue to developing the pro-openness arguments (identifying waste, promoting citizen engagement, the politics of policy not of process, sharing the burden of complexity, letting people outside government solve problems) and Juan Pablo Olmedo called for greater exchanges of experience on how resistance had been successfully overcome. Professor Erik Boe proposed automated computer systems which would lead the public official through the disclosure process, checking that exceptions had been applied correctly, that reasons had been given, etc – for some information these systems could be almost self executing.

7. Information for Participation: a number of speakers stressed that information should be available not only for holding governments accountable but for participation at the earliest stages of decision-making, shaping the nature of the decisions to be taken as well as having an impact on their outcomes. Betrand de la Chappelle talked about the need to review the functioning of governance work flows (and therefore information flows) in order to push participation up to the earliest stages of decision-making. Joanne Cady of the OECD spoke about how the internet age is allowing for new roles for civil society as a partner to government and spoke of “public engagement as a condition of effective governance” stressing the need for governments to make use of the social or “participative web” (Web 2.0) in order to “mainstream public engagement”.

8. Guest Speaker, Heather Brooke: the journalist who filed the initial requests that eventually lead to the MP’s expenses scandal in the UK (there is a book and a BBC dramatisation coming out!). She expressed concern about the collapse of investigative journalism although fortunately it’s been replaced by FOI, although in the MPs expenses case it was actually an illegal leak that lead to disclosure of the information. She noted that the British Parliament “suffered not because of FOI but because they fought FOI”. Heather emphasised the value of access to information as tool for rooting out waste/corruption/inefficiency.

9. The Scope of the Right – Private bodies? : Speakers on the last day (Gunnar Haraldsson from Iceland’s Financial Supervisory Authority and Professor Jan Fridthjof Bernt of Bergen University, Norway) raised questions about the scope of the right. Professor Bernt made a good case for expanding it as widely as possible to all public bodies (exercising public power) and publicly funded bodies, although noted that in the 2006 revisions to Norway’s law this had not been achieved 100%. Speakers from the floor, including Richard Calland, urged breaking out of the current administrative law paradigm and adopting a rights-based approach which would inevitably lead to the right of access to information extending to private bodies, at least as so far as they have some influence on the daily lives of potential requestors. A number of commissioners noted how their powers extend to private bodies for data protection rights but not for access to information rights.

With respect to the financial crisis, it was also noted with respect to the financial crisis that the market is based on ensuring the flow of information and there are many laws which require proactive disclosure by market players, but clearly this was not enough and/or the information was not properly processed: Haraldsson referred to the Bible story in which there was writing on the wall but no one knew how to interpret it – the writing was the names of different measures of currency and warned of the fall of an empire!

It seems clear that the debate about the scope of the right will continue and may advance more as the emphasis is put on the proactive dimension of the right.


Helen Darbishire

Executive Director

Access Info Europe


mobile tel: + 34 667 685 319

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