Right to information

[Jonathan Buhacoff]

The proposed right:

No person shall be denied private or personal information about themselves that was collected and retained as part of a business activity.

No person shall be denied private or personal information about themselves that was collected and retained as part of a government activity, except for information classified as confidential or secret.

No government agency shall deny the public access to information, except for information that is classified as private, personal, confidential, or secret.

No government agency shall classify information as private, personal, confidential, or secret without specifying a maximum duration for such classification.

Intent:

This right deters privacy violations by requiring any private or personal information collected about someone to be shared with them on demand, whether collected by a business or government agency. When people can demand information about themselves, they can uncover incidents of business or government collecting or retaining information inappropriately. If a business or government agency collects and retains such information but does not disclose it as required by this right, and this misbehavior is later revealed, the business or government agency will be liable for violation of rights.

This right deters government corruption by requiring any unclassified information to be disclosed. The ability to demand records from the government helps the public understand what is happening in government and makes it harder for corrupt officials to hide their activities. The requirement to impose a time limit on any private, personal, confidential, or secret information ensures that the public will eventually discover what was previously unavailable such that even where classification is inappropriately used to hide criminal conduct by the government, it cannot be used to hide it forever.

Discussion:

A working definition of “private” is something that would be protected by the right to privacy — information that a person would not normally share with others, or was collected under a non-disclosure agreement or understanding of privacy, or was collected in secret. If a business asks a person to enter payment information or “security questions” when creating an account, that information is private because the person is sharing it in confidence with the business for the purpose of their mutual relationship. If a business records a phone call or video call with a customer, that recording is private unless the person explicitly agreed that it may be shared with others.

A working definition of “personal” is something that has to do with a person but is not private. For example, if a business collects and retains the shopping habits of an individual, that information is personal because it is identified as the shopping habits of that person. A person would not expect their personal interactions with a business to be shared with others, unless they explicitly agree to such sharing.

A working definition of “confidential” is something that must not be shared with the public in order to protect the government’s operations. For example, the daily itinerary of a government official may be confidential until some time has passed, because such information is useful to people who wish to attack a government official. However, the people do have a right to know what their government officials are doing so once that itinerary is in the past, for example after a month has passed, it is no longer confidential. This doesn’t prevent the government from sharing a public itinerary, such as a government official’s plans to be present at a public meeting. For example, when investigators or law enforcement officials collect information about a person as part of an investigation or law enforcement activity, that information is confidential because if a suspect can ask the government for everything it knows before it concluded the investigation, it can give an advantage to that person in evading justice. However, after the investigation is concluded and the person is exonerated, that information is no longer confidential but it may still be considered private or personal to that individual so it’s protected from the public but must be shared with that person unless the government destroys the information collected. If the information is disclosed during a trial then it is no longer confidential.

A working definition of “secret” is information that, if disclosed, can be exploited by adversaries to the detriment of the public. Protecting such information is therefore important to national security. The government may have multiple levels of secrecy to provide for different levels of control depending on the sensitivity of the information. To protect against disclosure, the government does not disclose secret information to anyone who doesn’t have a need to know, and only after a non-disclosure agreement has been signed by that person. To protect against the use of the secret classification to hide criminal conduct by government officials, there must be a limit on how long information can be kept secret, and the government should enact laws specifically prohibiting such corrupt conduct so that anyone in government who observes it may utilize whistleblower protection to seek justice.

Some examples of this right are that a person must be given access to their own medical records, their billing records with any provider, their criminal record, credit report, educational record, transcripts, and more. If a company retains information about anyone, then that company has a duty to disclose that information to the subject of the information on demand. In order to fulfill that duty, all such organizations that keep information about people have a duty to disclose what kind of information they retain, so that people can demand to see it. If an organization is collecting and retaining information on people and not disclosing the kind of information they collect and retain, anyone who knows about this has a duty to fight people’s rights and make it known. A non-disclosure agreement requiring someone to keep quiet about such knowledge would not be legally enforceable because it requires the violating other people’s rights.

The “business activity” part is intended to limit this right to information collected by a vendor who sold or will try to sell something to the person, or a business that collects and sells information about people (such as a credit bureau). However, if a business collects information about people or their activities and then aggregates that information so that it no longer identifies or is about a specific person, and from which data about an individual person cannot be extracted, that aggregated information belongs to the business and may be considered confidential by the business and does not need to be disclosed to any person under this right. Only the raw information collected about a person must be disclosed to that person (and not anyone else) on demand by that person under this right.

It’s important to note that the “right to information” is not a right to access “all” information, and doesn’t apply to information collected by a private individual who does not have a business relationship with the person and does not have a business relationship with anyone else regarding the information collected. It also doesn’t apply to private information collected about other people. A person only has access to private information collected about themselves, unless it is held by the government and classified as confidential or secret, for example information collected by the Investigative Branch while an investigation or trial is active and for a limited duration after it is inactive.

The government should specify, wherever possible, an event that would trigger earlier declassification of information. For example if a certain kind of information is classified for a maximum duration of 25 years, but a particular piece of information no longer has a useful purpose for being confidential after a certain event occurs, it can be marked in advance that it becomes declassified some time after such an event has occurred, for example 1 year or 5 years after an event, so there’s a chance it can be declassified earlier than the maximum duration.

Comparison to the United States:

The third part of this right about unclassified information is similar to the Freedom of Information Act in the United States.

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