The Enlightenment

By Jill Scott, LLB, LLM Have courage to use your own understanding!-- that is the motto of enlightenment1 Earlier this year in British Columbia, the debate about access to government information and the right to privacy began in earnest2. Submissions by the government of B.C. advocated for the opening up of access by government to the personal information of citizens in order to support integrated service delivery. Material changes were proposed to the Freedom of Information and Protection of Privacy Act (FIPPA) that would dramatically change the scope of rights previously enjoyed by B.C. citizens. The Office of the Information and Privacy Commissioner and stakeholder groups challenged the governments position in various ways, by supporting the right of citizens to protection of privacy. The B.C. government has since introduced amendments to health care legislation to provide the Minister of Health with extensive new powers to collect personal information for broadly defined stewardship purposes, in respect of which the former Information and Privacy Commissioner expressed grave concerns. With regard to access to information, the federal, provincial and territorial privacy commissioners have resolved that governments must embrace the principles of open government, by providing greater access to government records. There is a call for greater transparency with respect to government information, privacy protection and the legislative process. Technological advances continue to facilitate the creation and storage of volumes of government records and the sharing of citizens personal information. These advances have significantly outpaced legislative reforms and have created both benefits for citizens and risks for the protection and exercise of individual rights. It is important that citizens are well informed about the implications of operational and policy changes within government and the impact on their rights. The recently reported Veterans Affairs scandal, in which there was grave mishandling of highly sensitive information by government officials, highlights how easily public trust in government may be questioned and lost.3 Citizens need to understand how all of this impacts their everyday lives. This requires a healthy process of public enlightenment and dialogue on the real meaning of access to information and privacy rights in B.C. today and what is or should be the direction of government policy and legislative reform. Many have witnessed the beginnings of this process, when submissions were made earlier this year to the Special Committee appointed to review FIPPA. Public discussion on the same
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Immanuel Kant on the question of enlightenment: http://www.english.upenn.edu/~mgamer/Etexts/kant.html Refer to the submissions by the Government of B,C. and those of the Office of the Information and Privacy Commissioner: http://www.leg.bc.ca/cmt/39thparl/session-2/foi/reports/HTML/Rpt-FOI-39-2-Rpt-2010-MAY31.htm.. See also Bill 11 amendments to the Ministry of Health Act, Public Health Act and Health Authorities Act: http://www.leg.bc.ca/39th2nd/1st_read/gov11-1.htm and the response of the OIPC: http://www.oipc.bc.ca/pdfs/public/F10-41328%20Falcon%20Letter%20(22%20Apr%2010).pdf also http://fipa.bc.ca/home/ 3 http://www.cbc.ca/canada/ottawa/story/2010/10/07/veteran-privacy-breach.html

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theme continued at a recent Information Summit held on September 29th, 20104. At the Summit, some attendees expressed concerns about government delays in responding to access requests and differential treatment between requestors for the same information; others openly spoke of lack of trust in governments handling of their personal information. While government representatives provided strong assurances about e-health privacy and current proposals for legislative reform of FIPPA, it is safe to say that not all attendees felt reassured by the conversation. Indeed, many people do not fully understand the implications of what lies ahead, especially with respect to the B.C. governments planned integrated case management system, e-health generally and government responsibilities with respect to access to information. To what extent and how the process of enlightenment will continue to satisfactory resolution remains an open question. Historical Context of Enlightenment The general concept of enlightenment has historical roots that may help us to understand its relevance today in the context of government policy and legislative reform of FIPPA. The word enlightenment is traditionally associated with the 18thcentury movement in Western philosophy which focused on free thinking and the use of reason and scientific analysis to challenge conventional ways and the constraints of political and religious authority5. The enlightenment movement recognized that intellectual curiosity and autonomous thinking fostered innovation, experimentation and progress to the benefit of society. Enlightenment was synonymous with academic freedom and critical thinking. Many of the brilliant intellectuals who participated in, and led this movement, did so despite possible retribution from state, church and the public. They questioned traditional authorities and approached their subject of interest with open and free minds. Characteristic of the literati of the time was the sharing of thoughts, knowledge and ideas among scholars and with their public audience6. There was much reading, writing and public speech, stimulated through debating clubs and societies. The enlightenment era produced some of the most scholarly and influential works of the 18th century, extending across a broad range of subjects, including economics, jurisprudence, philosophy, religion, science, education and the arts and are associated with historians, philosophers and other scholars such as Adam Smith7, David Hume8, Immanuel Kant9 and John Locke10. The works of the enlightenment period remain influential today. Enlightenment and Democracy

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http://infosummit.ca/ http://en.wikipedia.org/wiki/Age_of_Enlightenment 6 The Scottish Enlightenment, The historical Age of the Historical Nation, by Alexander Broadie, published by Birlinn Limited, 2007. 7 http://en.wikipedia.org/wiki/Adam_Smith 8 http://en.wikipedia.org/wiki/David_Hume 9 http://en.wikipedia.org/wiki/Immanuel_Kant 10 http://en.wikipedia.org/wiki/John_Locke

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During the enlightenment era, the philosopher, Adam Ferguson, wrote about the checks and balances necessary in a democratic state11: It is well known, that constitutions framed for the preservation of liberty, must consist of many parts; and that senates, popular assemblies, courts of justice, magistrates of different orders, must combine to balance each other, while they exercise, sustain, or check the executive power. If any part is struck out, the fabric must totter, or fall; if any member is remiss, the others must encroach... The liberty of the press, reflective of the intellectual freedom in Scotland at the time, was celebrated as a necessary challenge to the political leaders of the day12. No political policy was secure from public criticism and debate. Likewise, the liberty of individuals and the proper restraint of government power were much debated. The protection of and respect for legal rights, including freedom of speech, and the participation of citizens in public life, was regarded as the pre-requisite of good government and necessary to sustain liberty.13 Liberty results, we say, from the government of laws... Statutes fall to record the rights of a people, and speak the intention of parties to defend what the letter of the law has expressed; but without the vigour to maintain what is acknowledged as a right, the mere record of it, or the feeble intention, is of little avail... The concept of open government is gaining traction in other jurisdictions and citizen rights are also under debate. In former times, Adam Ferguson questioned traditional notions of order in civil society and saw the dangers inherent in blind obedience to authority, passive citizenry and lack of transparency:14 Our notion of order in civil society... is frequently false; we consider commotion and action as contrary to its nature; we think that obedience, secrecy and the silent passing of affairs through the hands of a few, are its real constituents... but the good order of men in a society is their being placed where they are properly qualified to act... When we seek in a society for the order of mere inaction and tranquility, we forget the nature of our subject, and find the order of slaves, not that of free men. Active citizenry can be the catalyst for positive changes. We can see evidence of this in submissions already made to government and in the proposed legislative amendments to FIPPA - perhaps we will see more before amendments are finalized. Enlightenment and FIPPA Reform The current commotion that is beginning to gain momentum with respect to privacy rights and access to information in British Columbia and other jurisdictions is a reaction generated in part by the fear that governments will unreasonably encroach upon basic rights and liberties and will
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An Essay on the History of Civil Society, by Adam Ferguson at page 482. http://www.constitution.org/dh/libpress.htm; also supra n.3 at pages 31-32. 13 Supra n.9 at pages 801, 475 and 476, see also supra n.3 at page 87. 14 Supra, n.9. at page 485.

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do so without transparency and clear justification. Lack of transparency erodes the checks and balances of democracy and disables individuals and organizations from challenging the laws and policies of the day. Likewise, where individuals consider that too much personal information is being shared within government or fear that this is so, they feel vulnerable and may be reticent to engage with government to obtain services. They are afraid, in some cases with good cause15, that decisions will be made that impact them unfairly, without their knowledge or consent. They may also feel an invisible pressure to share more information than necessary. As one distinguished author wrote with regard to the invisible threads that make up the dossier of our personal lives16: One could always find something negative and suspicious about every human being alive, for everyone was guilty of something, or hiding something, if one got down to it. Long ago, Adam Smith, one of the most famous philosophers of the enlightenment period, wrote about the importance of fellow-feeling17 for the circumstances of others. Empathy is an important aspect of tolerance within our society. Where others are less favoured by policy choices and are more seriously impacted and potentially harmed by them, it is essential to take proper account of their situation. Where individuals suffer as a result of unauthorized government action, such as occurred in the recent Veterans Affairs issue, which caused considerable anguish and suffering for the individual concerned, appropriate thought and action are required to address the wrong done. In that case, the federal government issued an apology for the mishandling of personal information and will likely strengthen internal controls and procedures in conformance with the report by the Information and Privacy Commissioner. However, the impact of the wrong done does not end there and there are likely longer-term consequences for the individual concerned that cannot be readily measured. No one wishes to be subjected to similar experiences. Such incidents are a testament to the lack of fellow-feeling that is sometimes prevalent in todays society. Conclusion In a democracy, the merits of public debate on legal and policy issues are manifold. Governments are held to account and required to justify proposed laws and policies by providing reasons and explanations that are available to public scrutiny. In this way, governments contribute new ideas and enlighten their public audience. This is balanced by the toleration of contrary views and constructive comment on laws that significantly impact the personal rights and freedoms of citizens. Once policy decisions are made and technological and legislative changes to the Freedom of Information and Protection of Privacy Act are being implemented, it may be impossible, without considerable cost, to diverge from the path steered by government. The precedents that are
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For example, the Veterans Affairs, a case where there was grave mishandling of highly sensitive information and which has generated distrust on the part of the public with regard to government controls. 16 Cancer Ward, by Alexander Solzhenitsyn at page 221 - and 224 (1968 publication by the Dial Press, Inc. New York). 17 The Theory of Moral |Sentiments by Adam Smith.

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set may become the legacy of future generations. Other jurisdictions have embraced citizen participation in a variety of ways, including in governance18. We should welcome the opportunity to continue the debate in order to find solutions that adequately protect privacy and access rights and allow government to go about its business and to provide essential services subject to reasonable restraint.

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For example the United States: http://www.data.gov/whatsnew and United Kingdom: Tell us what data sets you want released and Clegg asks British People: what is freedom to you? http://www.cabinetoffice.gov.uk/l A National Framework for Greater Citizen Participation, Ministry of Justice July 2009: http://www.justice.gov.uk/news/announcement090708b.htm

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