Freedom of information in the U.K., U.S., and Canada: freedom of information (FOI) laws are becoming more prevalent throughout the world. But they are only as effective as the systems that support them.

The following article is based on a research report written for the ARMA International Educational Foundation in 2006. The complete report may be downloaded free at www.armaedfoundation.org.

Over the past two decades, the number of freedom of information (FOI) laws has grown from nine to 68, and they are continuing to be passed by more and more countries around the world. The legislation is often touted by campaigners and other supporters as a window into government and by government administrations as proof of their commitment to transparency and accountability. How FOI works in practice, however, is often far from the ideal envisioned by either group.

Federal FOI laws can look very different, depending on where they are implemented and practiced. In three countries--Canada, the United Kingdom, and the United States--federal legislation was enacted at three distinct periods of FOI's evolution, yet the governments face common challenges and issues regarding their respective laws.

The U.S. Freedom of Information Act (FOIA), which originally passed in 1966 and has been amended four times, has given the rest of the world 40 years of experience on which to draw when writing and implementing their FOI laws. Canada, which passed its Access to Information Act (ATIA) in 1982, can take credit for a carefully structured act that has incorporated most of the key points necessary for good FOI legislation. The U.K.'s FOI Act 2000, to which 100,000 U.K. public authorities are subject, is the most recently passed law, having been fully implemented in 2005.

The Right to Access

FOI legislation works by conferring to the public the legal right to ask for and receive information held by public bodies. Enforceability is what sets FOI laws apart from general pledges of access to information made by governments. In the United States, the FOIA is enforceable in court, whereas Canada and the United Kingdom have established information commissioners to ensure compliance with their acts, backed by court action in Canada's case. However, though unused, both Canada and the United Kingdom incorporated a "government veto" into their legislation--a somewhat tentative commitment to FOI when compared to the U.S. legislation.

FOI legislation qualifies the right of access by defining a series of issues, or exemptions, for which the right is not valid. Exemptions are the key section of any FOI legislation because their breadth and depth determine how much information is actually disclosed. The practice of exempting information from disclosure to protect essential functions of government is consistent across all countries' FOI regimes. Common exemptions cover information that is related to national defense, international relations, and law enforcement, as well as information provided in confidence, personal information, and policy advice. There are few significant differences in the scope of the exemptions in the U.S., Canadian, and U.K. acts.

An obvious yet important potential exemption relates to the requester: Does the law give the right of access to anyone or only to that country's citizens? FOI laws in the United States and the United Kingdom allow anyone to make a request, while the Canadian ATIA applies only to Canadian citizens or permanent residents. A recent change in the United States via the Intelligence Authorization Act for Fiscal Year 2004 prohibits intelligence agencies from complying with requests from foreign governments, their representatives, or intergovernmental organizations.

In terms of numbers, FOI is actually used by only a minute portion of the population. In the United States, Canada, and the United Kingdom, fewer than 1 percent of the population in each country has made an FOI request. However, in terms of sheer numbers, far more people file FOI requests with the U.S. government than with the U.K. or Canadian governments. For example, the U.S. government received 2.6 million FOI requests in 2005 compared to Canada's 25,207 and the U.K.'s 38,108. The most frequent categories of requesters are private citizens, the media, and businesses.

Implementing FOI Laws

When deciding whether to pass an FOI law or how to implement one, government officials and politicians often fail to think carefully about the practicalities of putting the law into practice. For example, few seriously consider how the law will affect the jobs of civil servants and other government employees or, conversely, how the staff's abilities and attitudes will affect the success of the law's implementation. Yet those who answer requests and respond to complaints are the key players in the FOI implementation process. Along with FOI officers, records managers play a large role in ensuring that that implementation goes smoothly.

Several areas of FOI implementation are worth examining to understand the complexity of dealing with the legislation. The main ones to consider are:

* FOI response process/system

* Costs of compliance

* Time spent processing requests and backlogs

* FOI training and awareness for public authorities

* Senior management's role

* Recordkeeping as key to FOI's Success

Those who are not prepared face many challenges as they scramble to organize the information being requested.

Responding to FOI Requests

The logistical complexity of the FOI request response process is influenced by the nature of the tracking system as well as the type of the request. The centralized Canadian system allows all requests to be fed into one database, which is used by most departments and agencies. The United Kingdom and the United States, however, do not have centralized systems; nor do individual departments in those countries use common tracking software.

Another factor is whether departments respond to requests on a simple first-come, first-served basis ("single track") or divide them into those that are simple (requiring minimal administrative effort) and those that are complex or voluminous ("multi-track"). The process becomes more complicated and unwieldy as more moving parts lead to the involvement of more actors and increase the need for coordination.

Actors include those providing legal services or consultations with other departments, people at other levels of government, and foreign governments. If a request is refused and the requester is dissatisfied, additional actors can become involved in internal reviews (in both the United Kingdom and the United States), appeals to the information commissioner (in the United Kingdom and Canada), and appeals to a higher court (the U.K. information tribunal, the Federal Court of Canada).

The precise cost of complying with FOI legislation in the three countries is virtually impossible to calculate. One reason for this is that some agencies keep track of costs while others do not; another reason is the wide variation in how the costs are calculated. According to the U.S. Department of Justice Office of Information and Privacy, the total cost of administering the U.S. FOIA in 2003 was just over 23 million. According to the government of Canada, its annual FOI cost is estimated to be around $30 million (Cdn.) or approximately $25 million in U.S. dollars. In the United Kingdom, an estimate after 18 months was 35 million [pounds sterling] per year (about $68 million U.S.). The cost, naturally, depends on the efficiency of the response procedures and, therefore, to the time dedicated to FOI compliance.

The statutory guidelines for time needed for compliance are broadly comparable across the three jurisdictions. The U.K.'s FOI act stipulates that the authority must comply "not later than the twentieth working day following the date of receipt." In the United States, "(once) an agency properly receives a FOIA request, it has twenty working days in which to make a determination on the request," according to the Department of Justice's May 2004

"Freedom of Information Act Guide." In Canada, the ATIA mandates that the response must be made "within thirty days after the request is received."

In each jurisdiction, however, these statutory response times are often not adhered to--for instance, delays are the most common reason for requester dissatisfaction in Britain and Canada--and response times are mixed in each jurisdiction. U.K. central government organizations' adherence to the time limit varied between 64 and 92 percent, according to one set of statistics from the "Freedom of Information--One Year On" report.

Comparable U.S. figures are hard to come by, owing to the decentralization of the process and compilation of statistics, which do not include delay time. Under the Canadian legislation, a late response constitutes a "deemed refusal" and, after a marked decrease in the number of deemed refusals in 1999, the number is on the rise again: the lowest being 5.9 percent, the highest 60.1 percent (Citizenship and Immigration Canada and Department of Foreign Affairs and International Trade respectively), according to the Information Commissioner of Canada's annual report for 2005-2006. In all three countries, delays typically lead to backlogs: 18 percent of requests in Canada are backlogged each year, while only 7.1 percent in the United States and 2.6 percent in the United Kingdom share the same fate.

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