Submission to the Select Special Freedom of Information and Protection
of Privacy Act Review Committee (Alberta)
11 April, 2002
I. Abstract
II. Background
III. The Issue
IV. Relevant
Principles
V. Argument
from Principle
VI. Argument
from Practice
VII. Conclusion
VIII. Notes
Appendix "A"
Protection of
Conscience Project
Appendix "B"
Project Report
2001-01
Appendix "C"
Correspondence
& Access to Information Request
Alberta Pharmaceutical Association/Alberta College
of Pharmacists
" I will affirm what I consider to be the
fundamental truth: that access by citizens to
information held by their governing institutions
is critical to the health of a modern
democracy."
David Loukidelis,
Information and Privacy Commissioner for British
Columbia
During 2000, a controversy arose because some
pharmacists objected, for reasons of conscience, to
involvement in dispensing potentially abortifacient
drugs. Pharmacy regulatory authorities made
statements and proposed policies that exerted a
significant influence on the attitudes of
pharmacists, employers, media, the public and
government. As a result, the Protection of
Conscience Project wrote to pharmacy regulatory
authorities in Canada, seeking information about the
basis for their policies and statements.
The
Alberta Pharmaceutical Association (now the Alberta
College of Pharmacists) did not acknowledge the
first letter from the Project, and ignored
subsequent letters seeking the courtesy of a reply.
The APhA/College also ignored letters on the subject
from some of its own members and from a member of
the public. In the face of stonewalling by the
APhA/College, an access to information request was
filed by the Project. It was rejected by the
Registrar, who noted that the College was not bound
by the Alberta Freedom of Information and
Protection of Privacy Act, was not staffed to
comply with such requests, and was unwilling to
commit resources necessary to respond to the request
from the Project.
The issue: Should the regulatory
authorities of self-governing professions in Alberta
be made subject to the Alberta Freedom of
Information and Protection of Privacy Act?
Relevant principles: Access to information
legislation should apply to all institutions that
participate in governance and that may significantly
influence public affairs or impact fundamental
freedoms. Such institutions should be continually
subjected to "relevant and searching criticism" so
that citizens have the information they require to
participate fully in modern democratic government.
This will enable citizens to protect themselves
against maladministration or abuse. Institutions
should not be permitted to determine what
information in their possession is relevant or
necessary for that purpose.
Argument: Self-governing professions,
particularly in health care, exercise considerable
influence on government policy, employers, the media
and public opinion. In some cases, they assume
degrees of responsibility for enforcing government
policies developed as a result of their advice.
Their disciplinary and licensing powers can be used
directly to the prejudice of fundamental freedoms.
It is in the public interest to safeguard these
freedoms and hold these professions accountable by
compelling them to disclose information about their
administration and decision-making processes.
It appears that the Alberta College of
Pharmacists understands the principle of public
accountability to apply only to its public
complaints process and disciplinary proceedings, but
it is submitted that this is too narrow a view.
Access legislation can assist in identifying
problems in administration and major decision-making
processes of self-governing professions that may
significantly impact fundamental freedoms.
Access legislation was used for this purpose to
produce
Project Report 2001-01, which identified
structural bias against conscientious objectors,
particularly religious believers, in the
administration of the College of Pharmacists of BC.
Forcing the disclosure of this kind of information
can prevent abuse of authority that adversely
impacts fundamental freedoms, and can assist in
identifying institutional shortcomings that need to
be remedied.
The British Columbia Freedom of Information
and Protection of Privacy Act applies to
self-governing professions. There is no evidence
that it has imposed an unmanageable burden on them
or has been otherwise unworkable. The Act contains
its own provisions to ensure that sensitive material
is not improperly disclosed to third parties. Thus,
there is no reason to believe that the application
of Alberta's Freedom of Information and
Protection of Privacy Act its self-governing
professions would prove to be impractical.
Conclusion: The conduct of the Alberta
College of Pharmacists indicates that it is in the
public interest to ensure that self-governing
professions operate in a completely transparent
manner by making them subject to Alberta's Freedom of Information and Protection of Privacy
Act.
During 2000, increasing introduction of the
'morning-after-pill' (brand names include Preven
and Plan B) caused some pharmacists to
object, for reasons of conscience, to dispensing
such drugs. They noted that the drugs could act by
preventing implantation of an early embryo in the
uterus rather than by preventing fertilization
(conception), and refused to participate in what
they considered to be the moral equivalent of
abortion. Their position was made more difficult to
explain to the general public because the
'morning-after-pill' was (and is) aggressively
marketed as an 'emergency contraceptive', and the
marketing terminology was adopted by the media and
many professional associations.1
Studies cited by proponents of the
'morning-after-pill' have indicated that only about
6% of women who have been given these drugs may
actually have been pregnant.2
Despite this, pharmacy regulatory authorities and
their national body (National Association of
Pharmacy Regulatory Authorities- NAPRA), and
professional organs of opinion have been generally
unsupportive of or even openly hostile towards
pharmacists who objected to dispensing the
'morning-after-pill' for reasons of
conscience.3
Two objectors who spoke at the Canadian Pharmacy
Association conference Saskatoon in June, 2000,
found the atmosphere hostile, and were told by some
colleagues that they ought to leave the
profession.4
In articles and letters published in professional
journals, a prominent member of the Ethics Advisory
Committee of the College of Pharmacists of B.C.
repeatedly attacked the principle of freedom of
conscience for pharmacists;5
the editor of Pharmacy Practice equated
conscientious objection among pharmacists to
racism.6
There is evidence that employers were influenced
by the policies and statements of regulatory
authorities, or of those perceived to represent
these authorities. For example, Canada Safeway
entered the millennium by asserting that it had the
right to ensure that employees with religious
scruples "promptly serve its customers" and not
direct them to competitors for such things as
"euthanasia drugs" or "RU 486" (mifepristone, an
abortifacient mistakenly identified in the
company bulletin as the 'morning after pill'). The
company directed objecting pharmacists to provide
service if another pharmacist was not available to
do so.7
Safeway later withdrew the policy and, instead,
took an approach it believed to be consistent with
"the Code of Ethics published by various colleges
and registrars across the country and . . . with
that adopted by the Medical profession."8
Even though NAPRA is an association of convenience
with no regulatory authority, and its policy on
conscientious objection has no legal force, Shoppers
Drug Mart adopted the NAPRA policy, including its
requirement that an objecting pharmacist actively
assist a patient to obtain a morally controversial
drug.9
A representative of Concerned Pharmacists for
Conscience, an Alberta organization, wrote to the
APhA/College to express concerns and objections to
the model 'conscience clause' proposed by NAPRA in
February, 2000;10no
acknowledgement of the letter was ever received.
The Protection of Conscience Project (Appendix
"A") became involved in the pharmacist
controversy in the spring of 2000. Among the steps
taken, letters were sent to NAPRA and all regulatory
authorities in Canada, seeking information about the
basis for the policy adopted by NAPRA. The
APhA/College did not acknowledge the first letter,
and ignored subsequent letters from the Project
seeking the courtesy of a reply (Appendix
"C"). In May, 2000, an Albertan wrote to the
APhA/College with three questions concerning the
'morning-after-pill' and conscientious objection in
the profession; this letter, too, was not
acknowledged (Appendix
"C").
In August, 2001, another representative of
Concerned Pharmacists for Conscience wrote to the
APhA/College. The letter was intended " to clarify
the position of the College of Pharmacists of
Alberta, in regards to the NAPRA Model Statement
Regarding Pharmacists' Refusal to Provide Products
or Services for Moral or Religious Reasons" (Appendix
"C"). The letter was not acknowledged. The
pharmacist sent a second letter on 7 September
seeking a response from the APhA/College; this
letter, too, was ignored (Appendix
"C").
Meanwhile, the Registrar of the College of
Pharmacists of BC, abruptly terminated
correspondence with the Project Administrator and
ignored subsequent letters. An access request filed
under British Columbia's Freedom of Information
and Protection of Privacy Act resulted in the
disclosure of records that made it possible to
compile a report on the conduct of the Ethics
Advisory Committee and on related College policies (Project
Report 2001-01)
Given the stonewalling by the Alberta College of
Pharmacists, an access to information request was
filed by the Project in June, 2001. The access
request was drafted to capture information that
would indicate if the policies and administration of
the College were governed by anti-religious bias,
concerns addressed in the report on the College of
Pharmacists of BC. It was rejected by the Registrar,
who noted that the College was not subject to the
Alberta Freedom of Information and Protection of
Privacy Act. (Appendix
"C")
Should the regulatory authorities of all
self-governing professions in Alberta be made
subject to the Alberta Freedom of Information and
Protection of Privacy Act?
A 1987 Parliamentary Standing Committee reported
that federal access legislation strengthened
Canadian democracy "by making government, its
bureaucracy and its agencies accountable to the
electorate and by protecting the rights of
individuals against possible abuse."11
This theme was taken up ten years later, when nine
justices of the Supreme Court of Canada held that
access to information legislation facilitates
democracy by ensuring that citizens have the
information they need to participate in the
democratic process, and by ensuring the
accountability of politicians and
bureaucrats.12
Asserting that "politically relevant
information should be distributed as widely as
reasonably possible," the justices quoted political
philosopher John Plamenatz:
There are not two stores of politically
relevant information, a larger one shared
by the professionals, the whole-time leaders and
persuaders, and a much smaller one shared
by ordinary citizens. No leader or persuader
possesses more than a small part of the
information that must be available in the
community if government is to be effective and
responsible; and the same is true of the
ordinary citizen. What matters, if there is to
be responsible government, is that this mass of
information should be so distributed among
professionals and ordinary citizens that
competitors for power, influence and popular
support are exposed to relevant and searching
criticism. [Emphasis in original.] (Plamenatz,
Democracy and Illusion [1973], at pp.
178-79)
Quoting Professor Donald C. Rowat, the court also
emphasized that parliament and the public must have
"an adequate knowledge of what is going on" and
cannot "participate in the decision-making process
and contribute their talents to the formation of
policy and legislation if that process is hidden
from view." Rowat, "How Much Administrative
Secrecy?"(1965), 31 Can. J. of Econ. and Pol.
Sci. 479, at p. 480.
Particularly relevant to this submission is the
court's observation about the nature of contemporary
democratic government:
As society has become more complex,
governments have developed increasingly
elaborate bureaucratic structures to deal with
social problems. The more governmental power
becomes diffused through administrative
agencies, however, the less traditional forms of
political accountability, such as elections and
the principle of ministerial responsibility, are
able to ensure that citizens retain effective
control over those that govern them; see David
J. Mullan, "Access to Information and
Rule-Making", in John D. McCamus, ed., Freedom of Information: Canadian Perspectives
(1981), at p. 54.
This idea appears to have been accepted by
Alberta's previous Select Special Freedom of
Information and Protection of Privacy Act Review
Committee (March, 1999). The Committee reported that
it is in the public interest to make available
information about the decision-making processes of
professions that "exert significant influence in
public affairs."13
Speaking in Edmonton last year, David Loukidelis,
Information and Privacy Commissioner for British
Columbia, argued that modern Canadian political
conditions and the health of modern democracy
require that citizen access to information held by
governing institutions should be "as broad and
effective as is practicable," and quoted British
author James Michael:
[T]he governed should know as
much as possible about how they are governed.
Informed consent is essential in a democracy, and
not just because of the British constitutional
doctrine that political, if not legal, sovereignty
is based on popular support. [A liberal-democratic
government] rests on the proposition that
competition in the market-place of information, as
well as that of ideas, is at least very useful in
determining how a society should be run, [and on the
proposition] that publicity is an important
safeguard against maladministration. (Michael [1982]The
Politics of Secrecy.14
Finally, the Office of the Information and
Privacy Commissioner (Alberta) states that the
Alberta Freedom of Information and Protection of
Privacy Act "legislates open and accountable
government by guaranteeing applicants the right to
access records held by the government."15
These comments can be summarized in a statement
of principle. Access to information legislation
should apply to all institutions that participate in
governance, whether formally or by the practical
diffusion of legal authority, as a result of which
they may significantly influence public affairs or
impact fundamental freedoms. Such institutions
should operate openly, and be continually subjected
to "relevant and searching criticism" so that
citizens have the information they require to
participate fully in modern democratic government,
and can protect themselves against maladministration
or abuse.
Note that the Alberta Pharmaceutical Association
(as it then was), in its submission to the
Committee, acknowledged the validity of the
principle of accountability:
. . . we are accountable to
our members and are answerable to the public. We
take these responsibilities most seriously. Under
our current legislation, we maintain constant
communication with complainants about professional
issues which they bring to our attention both during
and at the conclusion of our investigations. All of
our disciplinary proceedings are open to the public,
subject to the decision of the Investigating
Committee who may rule otherwise if the privacy and
confidentiality of a third party or a minor may be
jeopardized. The results of all disciplinary
proceedings are published in our newsletter and are
forwarded to the local media in the community in
which they occur. This is an initiative we have
taken upon ourselves to demonstrate the
accountability we believe is expected
of us.16
The previous Select Committee took note of two
arguments against applying the Act to
self-governing professions.
The first was to the effect that self-governing
professions should not be accountable in the same
way as bodies funded by tax dollars. This argument
is relevant when the primary interest is to hold an
institution accountable for the expenditure of
public funds, but the principle articulated above
addresses a much broader range of concerns. The
degree to which an entity is reliant upon public
funds, though not irrelevant, is not determinative
of the issue.
The second argument was that provisions for
accountability were in place or could be included in
legislation authorizing self-governance. This is not
objectionable in principle but is unworkable in
practice. In the first place, crafting individual
freedom of information provisions in each statute
for every self-governing profession would be
extremely time-consuming, and the provisions
repetitious. Moreover, the addition of an extensive
body of access provisions with attendant regulations
would complicate the governing statutes, which
differ in focus from freedom of information laws.
Finally, the resulting mosaic of access rules and
procedures would not only be more costly to
administer, but would probably be much more
difficult for citizens to navigate. It is
preferable, for these reasons, to manage access to
information through the single, existing statute.
A principled approach requires the identification
of key characteristics of entities that should be
subject to freedom of information legislation.
Drawing on the principle suggested above, freedom of
information legislation should apply if an entity
participates in governance, whether formally or by
the practical diffusion of legal authority, as a
result of which it may significantly influence
public affairs or impact fundamental freedoms. These
criteria clearly apply to self-governing professions
in law, health care and education, and arguably to
other self-governing professions as well.
The actual conduct of the APhA/College of
Pharmacists, as illustrated by
Appendix "C", does not support its claim that it
takes seriously its responsibility to be answerable
to the public. It appears that it understands the
principle of public accountability to apply only to
its public complaints process and disciplinary
proceedings. The authorities and commentators cited
in Part IV indicate that this is far too narrow a
view.
Administration and major decision-making
processes involved in self-governance by professions
that impact public policy may significantly impact
fundamental freedoms. It may be consistent with
bureaucratic self-interest to keep these "hidden
from view", but the public interest would be better
served if the management of the APhA/College and
other professions were open to "relevant and
searching criticism" through the Freedom of
Information and Protection of Privacy Act.
This is illustrated by Project Report
2001-01(Appendix
"B"), prepared with materials secured through
British Columbia's Freedom of Information and
Protection of Privacy Act. The report identifies
a significant policy vacuum in the College of
Pharmacists of BC that encourages "ethical nepotism"
- the exclusion from decision-making of people whose
views differ from those of the College, particularly
religious believers. Five practical recommendations
are made to remedy the problems identified and to
protect conscientious objectors from abuse of
authority. Among these is the recommendation that
the Registrar and the Ethics Advisory Committee
members responsible for publication of
unsubstantiated imputations of dishonesty be recused
from disciplinary hearings concerning conscientious
objectors.
Members of the Select Special Freedom of
Information and Protection of Privacy Act Review
Committee need not accept the findings or
recommendations of the report to recognize the value
of inquiries of this kind. They provide an important
safeguard against maladministration by
"professionals, the whole-time leaders and
persuaders" who, operating through bureaucracies and
agencies through which governmental power is
diffused, "exert significant influence in public
affairs."
A schedule provided by the Information and
Privacy Commissioner for British Columbia lists 52
professions and occupations governed by the BC
statute, including the following professional
regulatory authorities:
- College of Acupuncturists of British
Columbia
- College of Dental Hygienists of British
Columbia
- College of Dental Surgeons of British
Columbia
- College of Dental Technicians of British
Columbia
- College of Denturists of British Columbia
- College of Licensed Practical Nurses of
British Columbia
- College of Massage Therapists of British
Columbia
- College of Midwives of British Columbia
- College of Naturopathic Physicians of
British Columbia
- College of Occupational Therapists of
British Columbia
- College of Pharmacists of British Columbia
- College of Physical Therapists of British
Columbia
- College of Physicians and Surgeons of
British Columbia
- College of Psychologists of British Columbia
- College of Registered Psychiatric Nurses of
British Columbia
- College of Teachers of British Columbia
- Health Professions Council
- Law Society of British Columbia
The Commissioner offers the following comment on
the operation of the B.C. statute:
. . . most of the
self-governing professions and occupations in
British Columbia are subject to the access and
privacy provisions of [the Freedom of Information
and Protection of Privacy] Act . . . Coverage of
these occupations and professions has not caused my
Office any difficulty.17
Finally, public interest researcher Ken Rubin, a
consultant to the Canadian Medical Association
Journal on health, safety and environmental
concerns, recently suggested that physicians should
make more use of freedom of information legislation.
"What access laws do (and could do much better if
they were radically improved)," he wrote, "is create
more transparency for everyone."18
The previous Committee cautioned the professions
against 'complacency', and recognized that it might
ultimately be necessary to legislate compliance. It
is submitted that the conduct of the Alberta College
of Pharmacists reflects the 'complacent' attitude
that was the concern of the Committee. The failure
of the APhA/College even to acknowledge
correspondence on important issues and the response
of the Registrar to the access request made by the
Project indicates that compliance with the spirit of
the Freedom of Information and Protection of
Privacy Act will only be secured by legislation.
Recalling the comments of Professor Donald C. Rowat,
approved by the Supreme Court of Canada, supra,
and the suggestion of CMAJ consultant Ken
Rubin, it is submitted that self-governing
professions should not be allowed to keep their
internal administration and formation of policy
hidden from view. The Committee should "create more
transparency for everyone" by making all
self-governing professions in Alberta subject to the
province's Freedom of Information and Protection
of Privacy Act.