Access to information (ATI) is animated by a simple principle: the public ought to know. Despite governments unfortunately tending towards secrecy and risk-aversion, a free flow of information is absolutely vital for democracy. ATI, then, is an important democratic safeguard, to mitigate the negative predilections of government and ensure a robust state of public discourse. ATI legislation first emerged in Sweden in 1766, but it wasn’t until the postwar era that it began to flourish in a number of other liberal democracies. The Canadian federal government first introduced ATI legislation in 1983, a move then followed by every other province and territory and many municipalities.
Publicly funded universities fall under the aegis of ATI legislation but they are, in some respects, hybrid institutions. On the one hand, they rely heavily upon public largesse, carry out public functions (education, research, and civic development), and contribute to the public good. On the other hand, they enjoy impressive autonomy and independence, have their own institutional culture and traditions, and restrict access based on merit. Universities across Canada have specialized offices that handle ATI requests, and they often navigate a fine line. They are employees of an institution with an increasing aversion to the release of embarrassing (and potentially damaging) information, while simultaneously expected to uphold the letter and spirit of legislation crafted in the public interest. Because universities sometimes tend towards secrecy and risk-aversion, ATI is similarly a democratic safeguard for them, too, to ensure honesty, transparency, and accountability. A recent case vividly illustrates why ATI legislation is so important in the context of universities, and also why the aforementioned public-private tension poses a challenge to the public’s right to know.
Emily Eaton is an Associate Professor of Geography and Environmental Studies at the University of Regina. Her research is about the influence of the fossil fuel industry in education and how it affects efforts to address climate change. In the fall of 2017, Eaton approached the University of Regina Research Office to inquire about private funding of research projects on campus.
Upon encouragement, she filed a formal ATI request on November 7, 2017, which resulted in negotiations between the Privacy and Access Office, the university administration, and herself. Her request asked for just four details of the research projects: the project title, the amount of funding, the name of the funder, and the name of the academic unit receiving the funding. The request originally included a 10 year time period, one that would have generated an unwieldy amount of records, so it was subsequently narrowed to solely include projects related to oil and gas, coal, carbon capture, and climate change.
The Privacy and Access Office subsequently invoked a section of The Local Authority Freedom of Information and Protection of Privacy Act to deny access to two pieces of information: the name of the funders and the recipients of the funding.
She appealed the decision to the Saskatchewan Information and Privacy Commissioner, who decided that she ought to be granted access in a report issued on November 28, 2018. In it, Commissioner Ronald J. Kruzeniski, wrote: “I recommend that the U of R release the project title, the funding amount, the funding agency, and the unit receiving the funding to the Applicant.” Importantly, the Saskatchewan Privacy Commissioner does not have the legal authority to compel adherence to their findings. Thus, the report and recommendations were just that – recommendations. The university responded on December 24th explaining that it disagreed with the Privacy Commissioner’s interpretation of the Act and would not implement their recommendation.
Despite the inconvenient timing, she then filed an appeal with the Saskatchewan Court of Queen’s Bench. To help cover costs associated with the legal challenge, she also appealed to supporters with a crowdfunding campaign in late January (and managed to raise just above $12,000).
The following May, she faced the case’s first hurdle by challenging a university motion to have closed court proceedings and confidentially submitted arguments. Justice Meghan McCreary ruled against it. The substantive case was eventually heard on February 26, 2020. Her lawyer, Dan LeBlanc, emphasized the fact that the unreleased information was in the public interest. Eaton’s case has garnered financial support from the Canadian Association of University Teachers and from many of her colleagues, and individuals across Canada who care deeply about freedom of expression, academic freedom, and the public’s right to know. A decision was expected in June of this year but has not materialized due to significant pandemic-related court delays.
The University of Regina’s position is twofold. First, the release of the names of the funders and the recipients of the funding would jeopardize academic freedom. The university’s lawyer, Erin Kleisinger, argues that because the associated research focuses on ‘polarizing issues,’ both funders and recipients might face negative scrutiny, including potential protest and backlash.
In an interview with Eaton from March, she described this response as “very infuriating” and a “perversion” of academic freedom, especially when one considers that private research contracts often feature clauses stipulating the conditions under which academics can share findings of their research. The university did not outline the scope and substance of academic freedom but did include a handful of affidavits from relevant university administrative staff supporting their position.
It is a perplexing position for a publicly funded and research-intensive university to take. When academic research is published, it is routine to declare funding sources. Self-interested funding sources do not necessarily invalidate research, but the imprimatur of the academy rightfully includes some safeguards to ensure scholarly standards and some semblance of objectivity and disinterest.
There is a problem here, if we follow the university’s logic: the university will obviously reap the benefits of research that has been conducted under its roof, but it is unwilling to grant the commensurate public scrutiny that is expected for a publicly funded institution. As Eaton notes, “disclosure is just the bare minimum we need in order to consider what our policies [around private funding] should be.” Further, if research cannot be carried out in the transparent fashion expected at a publicly funded institution, there is no shortage of alternative, private venues to conduct research.
Second, the university argues that the release of the name of the funders and the recipients of the funding would reduce the university’s competitiveness. If private companies were privy to the research activities of their competition, it might compromise the integrity of the research. Private companies are obviously in competition with each other, and rely upon cutting edge research for their competitive advantage. Similarly, universities compete against each other in attracting external funding. A university’s research portfolio is a crucial determinant of its stature and standing, and so they might cautiously guard the details of their research agreements if other universities can use that information for their own benefit.
Eaton dismisses this argument, since technical details related to any specific research study likely cannot be gleaned from a project title. Further, the university could have easily redacted this information, on a case by case basis, if it were a genuine concern. Even if one concedes that some competitive advantage might be had through secrecy, a more important question is whether or not a publicly funded institution ought to subsidize private research without anytransparency. Highlighting the crux of the issue, Eaton asks: “Is it OK for private, secretive research to be done in a public institution using public money?”
Asked to speculate on the motivations behind the university’s decision making, Eaton is quick to mention that the reasons included in the university’s legal brief may not actually reflect the decision-making calculus of the university. Nonetheless, the recalcitrant response from the university, coupled with flimsy justifications for its behaviour, has actually reinforced the perception of impropriety in the public sphere. The length to which it has gone to shield itself from a modicum of transparency suggests that there is something to hide, even if the actual details of the research are relatively banal.
This case highlights a number of factors that significantly affect the public’s right to know in the context of universities. First, the case highlights the degree to which universities straddle the boundary between public and private, and how a gradual movement towards the latter engenders more risk-aversion and less transparency. If the university’s mission is to serve the public good rather than private interests, restricting ATI is antithetical to that mission. To be blunt: when universities invoke economic competitiveness as a rationale for curtailing a modicum of transparency, both the academic community and the public ought to question that.
Second, and relatedly, the case highlights the degree to which universities are increasingly reliant upon private funding sources. In one sense, universities cannot be blamed for seeking out new sources of research funding, since gradual reductions in public funding leave few other options. However, if and when the proportion of private funding increases, it is reasonable to expect that the incentive structure for institutional decision-making will change. This is especially the case if universities are in direct competition with each other, and will likely take advantage of private funding opportunities that others neglect. For Eaton, the issue comes down to the absence of democratic decision-making via collegial governance. Academic communities have surely not decided upon the status quo if the terms of private research agreements are shielded from any form of oversight. Therefore, without a discussion or debate, the wider academic community is “basically green-lighting secret research being conducted in public institutions,” according to Eaton.
Third, the case highlights the degree to which ATI legislation is in dire need of reform in Canada. ATI legislation typically includes broadly written and interpreted exemptions that, in effect, provide government and institutions wide discretion in what they choose to disclose. Requesters will typically endure prohibitive fees and delays. Those challenging government and institutions bear the burden of onus. In sum, if there is good reason to prevent the release of specific information, successful requests will require formidable time, energy, and resources (particularly for the appeals process). In Saskatchewan, there is also the dire need to follow the lead of some other jurisdictions and grant the Privacy Commissioner the power to compel adherence to their decisions. To Eaton’s credit, she has challenged an untenable rationale for restricting ATI. But there are innumerable similar instances in which a requester simply relents amid multiple systemic barriers.
I think Eaton’s case reveals two big takeaways. If university decision-making increasingly reflects private self-interest rather than the public interest, the most potent strategy to reverse poor decision-making is, unfortunately, appealing to that same self-interest. This requires ample public scrutiny and criticism, and enough to incentivize gooddecision-making. At the moment, Eaton’s case is still before the courts but she is confident that the preponderance of evidence and argumentation will be in her favour. Otherwise, a “dangerous precedent” will be set, in her words, whereby universities can simply ignore non-enforceable oversight recommendations and will be emboldened to interpret applicable laws to prevent transparency.
Lastly, like any tool, ATI needs to be sharpened in order to remain useful. At the most basic level, this means making ample use of ATI and then challenging universities if and when they violate the letter and spirit of the legislation. Academics are in a special position to do this, particularly when academic freedom is disingenuously invoked as a rationale for limiting the public’s right to know. Of course, meeting your employer in court is not an ideal situation. As Eaton recounts, “it does make for some awkward moments.” But academics speak with immense authority when they challenge their own institutions’ veil of secrecy. The sad truth is that ATI legislation would not be necessary if governments and institutions were reflexively transparent.
Asked to comment on how her case relates to the role of academics in society more broadly, Eaton was quick to highlight the special protections they enjoy, like academic freedom, which protects her in her criticisms and actions against the university: “I really feel like academics have one of the only jobs in society, or maybe the only job in society, where we actually have these types of protections. And I think it’s really important that we use them. Somebody has to say these things. Somebody has to make these challenges, I think… In some ways it would be an abuse of our positions not to.” Let us hope that her insight and persistence pays off.