The potential for the business community to be an ally for freedom of information, the financial case for transparency, and innovative efforts to disseminate legal information were the topics of three talks Oct. 4 at the 7th International Conference of Information Commissioners in Ottawa.
The speakers appeared on a panel titled “Access to economic growth: The Business case for greater access to information.”
The business community should be viewed as a potential ally for FOI efforts, according to Thomas Susman, who said that business has over time has become comfortable with the law in the United States. Susman is the director of government affairs for the American Bar Association.
Susman first outlined how business benefits generally from a good disclosure regime through such things as more effective public participation, improved ability to comply with law; commercial, scientific and environmental benefits; more competitive procurement and contracting; more efficient resource allocation; more favorable investment climate.
“Many of the more important materials that are routinely published,” he noted, “were initially wrested out of government under the FOIA.”
In the United States, there is substantial certainty about the operation of the FOIA exemption for commercial business information, “so business can relax a little bit about what is likely to happen with their important information.” He noted that a presidential executive order assures that businesses will be consulted in advance about the disclosure of their information.
The absence of a public interest override in the United States has contributed to business comfort with the FOI law, as has the ability to file “reverse FOIA” actions to safeguard information.
He also pointed out that businesses are major users of FOI laws worldwide. There is value for them in learning about government contracts and about how agencies operate, and in some cases access to information spawns new businesses, he said.
American industry’s attitude toward FOI “has changed through the years from hostility to neutrality to enthusiasm,” he said, concluding, “To treat businesses as allies is a lesson we have learned from the U.S. experience.”
Access to Laws, Court Records
Michael Geist, a law professor at the University of Ottawa, described the creation of public databases of legal information and the continuing impediments facing such efforts.
One such system is the Canada Legal Information Institute, a database of more than 1 million judgments that is supported by a $33 annual fee paid by Canadian lawyers. Others exist in Australia, the United Kingdom, and Ireland.
The public has a basic right of access to legal materials, he said, noting that commercial legal publishers do not fill this need because of the cost and complexity of use. In many jurisdictions, legal information is controlled by a small number of publishers.
One of the biggest impediments to creating alternatives is funding, he said. Also, some courts and governments are reluctant to make the information freely available and may restrict the ways the information can be used. Some courts and governments retain the right to publish historic information and have various copyright controls.
The Financial Case
Huguette Labelle, a self-described “transparency and access to information pusher,” stressed “the financial case” for greater transparency.
The chair of Transparency International and Chancellor of the University of Ottawa, Labelle said secrecy increases illicit financial flows and encourages corruption.
Businesses have indicated their preference to avoid investment in corrupt and untransparent countries, she said. And those countries suffer from waste in public procurement, she said, citing a variety of examples.
She applauded some transparency regimes being used in the construction a new Berlin airport and for the expansion of the Panama Canal.
Transparency helps fight cartels, makes a dent in collusion, and reduces extortion in both the public and the private sectors, she said.
She stressed the need for more openness around oil, gas and mining revenues. In many countries this income accounts for 60 percent of the country budget, but the size of these payments are not known, she said. She said the World Economic Forum is developing a framework for disclosures by mining and metals companies.
Calling for “a greater social contract between the people and the government regarding access to information, she said this is necessary “so people don’t have to be on their knees to ask for information that belongs to them in the first place.”
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