Information and the Currency of Democracy

• Author: Craig Forcese - Aaron Freeman
• Pages: 481-528

481

9

Information and the

Currency of Democracy

In previous chapters, we focused on standards of probity imposed on pub-

lic off‌icials and on efforts to make lobbying transparent. In so doing, we

urged that the law of democratic accountability in Canada is about more

than checks and balances between branches of government. In this chapter

we underscore that point.

This chapter has a dual focus. The f‌irst is transparency in government,

specif‌ically, mechanisms ensuring that what government does is readily as-

certainable not only by parliamentarians, but also by the general public. The

second is a related issue: strictures on how much government may know

about the private, personal information of the public.

The importance of these issues to democratic accountability should not

be underestimated. Access to information contributes signif‌icantly to the

ability of the citizenry as a whole to hold government answerable, while lim-

itations on government use of personal information are a vital component

of limited government in a liberal democracy.

A. INFORMATION DISCLOSURE

1. Information Disclosure and Democracy

Access to information is an essential attribute of democracy. US consumer

advocate Ralph Nader has called information the “currency of democracy.”1

1 See, for example, Ralph Nader interview at www.achievement.org/autodoc/page/nad0int-4.

LAWS OF GOVERNMENT482

Openness and transparency preserve citizens from the malfeasance, incompe-

tence, corruption, and self-serving behaviour of incumbent governments.

They are, as US Supreme Justice Louis Brandeis once quipped, “the best

disinfectant.”2 As one of the founders of the United States, James Madison,

noted, “[a] popular government without popular information or the means of

acquiring it is but a prologue to a farce or a tragedy, or perhaps both. Know-

ledge will forever govern ignorance; and the people who mean to be their own

Governors, must arm themselves with the power which knowledge gives.”3

Madison’s sentiments were echoed repeatedly in discussions of what

would become the US Freedom of Information Act (FOIA),4 introduced in

1966. In hearings leading up to passage of that law, it was argued that “[f ]ree

people are, of necessity, informed; uninformed people can never be free.”5 In

a 1978 decision under the FOIA, the US Supreme Court echoed this observa-

tion, noting that “[t]he basic purpose of FOIA is to ensure an informed cit-

izenry, vital to the functioning of a democratic society, needed to check against

corruption and to hold the governors accountable to the governed.”6

A relative latecomer to the open government game, Canadians have

shared this suspicion of government secrecy. Former auditor general of Can-

ada Denis Desautels has urged that “[i]nformation is the current that charges

accountability in government.”7 Similar views were expressed in Canada dur-

ing discussions of federal information access laws. In 1975 Prime Minister

Pierre Trudeau noted that “[d]emocratic progress requires the ready avail-

ability of true and complete information. In this way people can objectively

evaluate the government’s policies. To act otherwise is to give way to despotic

secrecy.”8 The legislative history of what became the Access to Information Act

2 Louis Brandeis, Other People’s Money and How the Bankers Use It (New York: Frederick

A. Stokes Company, 1914) at 92.

3 James Madison in a letter to W.T. Barry (4 August 1822) in S. Padover, ed., The Complete

Madison (New York: Harper, 1953) at 337, as cited in T. Murray Rankin, Freedom of Infor-

mation in Canada: Will the Doors Stay Shut? (Ottawa: Canadian Bar Association, 1979)

at 1 [Rankin, Freedom of Information in Canada].

4 Freedom of Information Act of 4 July 1966, Pub. L. No. 89-487, 80 Stat. 250 (5 U.S.C. § 552).

5 Freedom of Information: Hearings on S. 1666 and S. 1663 before the Subcomm. on

Admin. Practice and Procedure of the Senate Comm. on the Judiciary, 88th Cong. 3

(1964) (statement of Sen. Edward Long), cited in Charles J. Wichmann, “Ridding FOIA

of those ‘Unanticipated Consequences’: Repaving a Necessary Road to Freedom” (1998)

47 Duke L.J. 1213 at 1217.

6 NLRB v. Robbins Tire and Rubber Company, 437 U.S. 214 at 242 (1978).

7 Cited in Information Commissioner, Annual Report 2000–01, online: www.infocom.

gc.ca/reports/2000-2001-e.asp (accessed 3 June 2004).

8 Pierre Elliott Trudeau, quoted by G. Baldwin, MP, in Standing Joint Committee on

Regulations and Other Statutory Instruments, Minutes of Proceedings and Evidence, 30th

Parl., 1st sess. (1974–85), 22:7, as cited in Rankin, Freedom of Information, above note 3.

Information and the Currency of Democracy 483

contains similar statements of principle. For example, in introducing the

Access bill for second reading in the House of Commons, Minister of Com-

munications Francis Fox urged that “[t]his legislation will, over time, become

one of the cornerstones of Canadian democracy. The access legislation will

be an important tool of accountability to Parliament and the electorate.”9

During the review of the Act undertaken in the mid-1980s by the Standing

Committee on Justice and the Solicitor General, the committee cited with ap-

proval the sentiments expressed in some of the statements reproduced above

and noted that the Access Act, along with the Canadian Charter of Rights and

Freedoms and the Privacy Act, “represent signif‌icant limits on bureaucracy

and have provided a f‌irm anchor to individual rights.”10

These views continue to be expressed by the information commission-

ers appointed pursuant to the Act. As information commissioner, John

Grace used colourful language to describe this perspective in his 1998 an-

nual report:

Any society aspiring to be free, just and civil must depend upon and nur-

ture a wide array of methods for exposing, and imposing sanctions on,

ethical failures . . . . In one way or another, all the checks and balances

designed to limit abuses of government power are dependent upon there

being access by outsiders to governments’ insider information . . . . Yes,

webs of intrigue are more easily woven in the dark; greed, misdeeds and

honest mistakes are more easily hidden. A public service which holds tight

to a culture of secrecy is a public service ripe for abuse.11

Canadian courts have also recognized the importance of free access to

information in a democracy. In his reasons in Dagg v. Canada, La Forest

J. urged that “[t]he overarching purpose of access to information legisla-

tion . . . is to facilitate democracy. It does so in two related ways. It helps

to ensure f‌irst, that citizens have the information required to participate

meaningfully in the democratic process, and secondly, that politicians and

bureaucrats remain accountable to the citizenry.”12 While La Forest J. was

writing in dissent, his approach to interpreting the Act was endorsed by the

majority in that case and has since been followed by the lower courts.13 More

9 House of Commons Debates (29 January 1981) at 6689.

10 House of Commons Standing Committee on Justice and Solicitor General, Open and

Shut: Enhancing the Right to Know and the Right to Privacy (March 1987) at 1 [Commons

Standing Committee on Justice, Open and Shut].

11 Information Commissioner, Annual Report 1997–98 at 4.

12 [1997] 2 S.C.R. 403 at para. 60 [Dagg].

13 See, for example, Canada (Attorney General) v. Canada (Information Commissioner),

2004 FC 431 at para. 22; Yeager v. Canada (Correctional Service) of Canada, [2003] 3 F.C.