Government Information in Canada/Information gouvernementale au Canada, Number/Numéro 18 (August 1999)
to Federal Government Publications
in Canada and the United States(1)
On both sides of the border, in Canada and the United States, there is growing concern among librarians about equitable and open public access to government information. In spite of the two countries' differing structures and laws surrounding government document production and dissemination, common trends exist which threaten the flow of this information to the public. This paper examines the roots of these trends, highlighting the issues as they as are manifested in each country.
Introduction
Canada and the United States are democratic cousins, each reflecting its own unique historical roots in government structures and laws. While the United States rebelled against England, declaring their independence in 1776, Canada remained a British Colony until 1867, maintaining close ties with the Crown. The policies and practices concerning public access to government information mirror the basic differences in philosophy and approach that grew out of each country's development. In spite of these underlying dissimilarities, the issues surrounding access to government information are remarkably similar on both sides of the border. Librarians in both countries have expressed their concerns that the flow of government information to the public is jeopardized by four key threats: privatization, decentralization, electronic publishing, specifically the Internet, and cost recovery, with its offspring commercialization.
Philosophical Differences
As Vivienne Monty observes, "In Canada, there is no legislation that requires government to make information available or to disseminate such information. In the U.S., Americans have laws, but also a powerful belief that citizen access to government information is a right." (3) Eugene Tate writes that the Canadian system intrinsically fosters less access because of its historical roots: "Since the Canadian system of government is based on the British model, secrecy has always been an important foundation for its proper functioning."(4) Monty agrees, "... in Canada, there is no concept of the citizen's right to information. Indeed, in the British tradition the public does not have access and tradition is codified in the Official Secrets Act." (5)
The fundamental difference in philosophy is embodied in the issue of copyright. The United States Constitution prohibits the federal government from retaining copyright on government information; in theory, the people own the information. The U.S. Copyright Law also unequivocally states that copyright protection does not extend to any work of the United States government. In Canada, the government holds copyright. Canadian Crown copyright is part of British parliamentary tradition in which "representatives act on behalf of the Crown and the Crown retains copyright ownership." (6)
Monty sums up the philosophical differences rather succinctly: "The U.S. bias is one of more rather than less access. The Canadian bias is toward less rather than more access." (7)
Structures and Laws for Access and Distribution
In the United States, access to government information through the Depository Library Program is mandated in Title 44, Chapter 19 of the U.S. Code. It empowers the Superintendent of Documents (SuDocs) to receive, classify, catalogue, and distribute federal government documents. Title 44 also charges the SuDocs with the responsibility of document preservation. To assure distribution to the depository libraries, sections 1901-1903 of Title 44 require federal agencies to provide the Superintendent with all their publications in all formats. The foundation for Title 44 reaches back to the Act of 1813 which authorized the distribution by the Secretary of State of one copy of House and Senate journals to selected libraries and institutions. The Printing Act of 1895, legislation which comprehensively revised the public printing laws, was the direct antecedent of Title 44.
The Canadian Depository Service Program was created by a 1927 Order in Council that was later included, along with other publishing directives, in the Treasury Board guidelines. Highlighting the greater strength of U.S. Title 44, Monty writes, "The Treasury Board Communications Policy Guidelines are at best weak. Nothing in them has the force of law, and many consider that they even lack strong moral suasion." (8) If departments do not supply them, the DSP may request, but not demand, free publications for deposit purposes.
Alan H. MacDonald recounts his efforts to find in the Charter of Rights and Freedoms, a Canadian "right " to information:
Compounding the weakness of the Treasury Board guidelines and the absence of a constitutional basis for distribution is the lack of any definitive policy statement. Bruce Morton commented on the fragmented and confusing Canadian government information policy:
The Canadian Access to Information Act gives the right of access to information in government records, but it does not provide for the general distribution of government documents, either within or outside of the Depository Service Program. It is "intended to complement and not replace existing procedures for access to government information." (11) The Act deals with individual access and addresses the individual's right to obtain records. People may request information, but first they must know it exists, where to find it, and then petition to receive it. The Access Act does not deal with maintaining the flow of government information from government institutions to the public and even furnishes an impediment to that flow. In Section 68, the Act states, "This Act does not apply to published material or material available for purchase by the public." (12)
Common Threats to Public Access and Distribution
In spite of the differences apparent in the two countries' fundamental philosophies, laws and regulatory structures for providing public access to and ensuring distribution of government information, the reshaping of government policies, arising out of economic exigencies and new technologies, is threatening the working depository systems in both Canada and the United States.
In 1988, Peter Hernon and Charles McClure identified seventeen issues that impacted upon effective provision of information by the U.S. Federal government. These issues were then grouped under broad categories which included:
"Federal organization for information policies" encompassed the question of whether the federal government should have a centralized information policy and the definition of the role of the Office of Management and Budget in formulating and implementing information policies. Under "public access and availability to government information," Hernon and McClure questioned what information falls under government responsibility, if Title 44 should be revised, and the precise role of the depository libraries. "The economics of government information" included the issues of possible pricing structures and government information as a commodity. (13)
In 1996 Monty presented analogous areas that pose dangers to the functioning of the Canadian depository library system and, by extension, to overall public access to government information. She identified these areas as privatization, electronic publishing, departmental autonomy, and cost recovery. (14) Within this framework, she considered changes and potential pitfalls in government information policy.
In the United States, in a 1998 oral statement before the Senate Committee on Rules and Administration, Robert L. Oakley, representing the American Association of Law Libraries, pinpointed the same areas of concern:
In both Canada and the United States, therefore, the same issues have been targeted and constitute common North American trends. While Monty might warn Canadians to consider the differences, (16) it is perhaps instructive to contemplate the similarities and analyze the perceived shared threats.
...I went back to the basics to extract the relevant section of the Charter of Rights and Freedoms that relates to our information rights, i.e. those things we can demand of the state with the power of the Constitution behind us. There is only one constitutional obligation of the governments of Canada (and of New Brunswick) that relates to information.
In the section on the Official Languages of Canada (Section 18 (1)) we are told that:
18. (1) The statutes, records and journals of Parliament shall be printed and published in English and French and similarly for the statutes, records and journals of the legislature of New Brunswick.
There is a constitutional obligation to print them, but not really a requirement to make them available to the public by distribution. (9)
It is also evident that federal information policy has been neither a consistent nor a considered process. Instead of weaving a tightly woven fabric of policy, the federal government has fabricated a patchwork of sometimes related initiatives and, more often, unrelated or clashing statements or actions. (10)
The trends toward decentralization, privatization, and commercialization of government information and the increased use of electronic technologies to produce and disseminate information have led to large amounts of government information eluding the primary systems of public access. (15)
Next: The Canadian Experience