Information Management

- Jide Afolabi

The Anishinabek Nation Governance Agreement establishes a new relationship between signatory First Nations and Canada that includes some stipulations regarding the flow of information.
Thus,

Section 9.1 – Canada will recommend to Parliament amendments to the Access to Information Act and the Privacy Act to protect from disclosure information provided in confidence by a First Nation or the Anishinabek Nation as if it were information provided to Canada by another government in Canada.

Section 9.2 – Canada will recommend to Parliament amendments to the Privacy Act to allow a First Nation or the Anishinabek Nation access to information necessary for a First Nation or the Anishinabek Nation to exercise its law-making powers and other authorities under this Agreement.

Section 9.4 - Canada may provide information to a First Nation or the Anishinabek Nation, in confidence, provided the First Nation or the Anishinabek Nation has enacted a law for the protection of confidential information or has entered into an agreement with Canada for the protection of confidential information.
It is clear, then, that the Anishinabek Nation Governance Agreement clearly sets out requirements for Canada to ensure signatory First Nations and the Anishinabek Nation are afforded the same information rights guaranteed to other governments in Canada.

Additionally, First Nations have a related internal commitment within the Anishinabek Nation Governance Agreement:
Section 9.7 – Each First Nation and the Anishinabek Nation will develop and maintain a system to provide E’Dbendaagzijig with access to information held by the First Nation Government, the Anishinabek Nation Government and Anishinaabe Institutions.
The above section is premised on the notion that the freedom of information and the protection of privacy are essential features of good governance since they serve the idea of a government that is open, and that citizens - E’Dbendaagzijig - can trust.

It is additionally premised on the notion that government should respect the privacy of those E’Dbendaagzijig.
A First Nations law put together for the purposes of this two-pronged jurisdictional area should, at a minimum, turn to three considerations:
  • the existing legal framework,
  • enabling access, and
  • adherence to the First Nations Information Governance Center’s OCAP Principles.
1. The Existing Legal Framework
The governmental information rights set out in sections 9.1, 9.2, and 9.4 of the Anishinabek Nation Governance Agreement, in addition to the responsibility of each signatory First Nation as set out in section 9.7, are important factors that would influence the type of legislation a First Nation might pass.
At a minimum, it is obvious that a “syncing” of governmental information management rules is a necessary condition to the free flow of information between Canada and the First Nations.
2. Enabling Access
In many ways, “freedom of information” is about the rights of persons to access information held by governments.

As a result, information–related legislation should clearly set out the specific rights applicants have to request information held by the government of a First Nation.
The rights could cover matters including:
  • separating records to allow individuals access to sections of records that are not legally restricted;
  • allowing applicants to either ask for a copy of the record, or to examine the actual record, and;
  • making information that is expected to be of general interest readily available, perhaps on a website, so there is no need for the bureaucratic burden of asking for it.
3. Adherence to the FNIGC OCAP Principles
The First Nations Information Governance Centre (FNIGC) was created with a mandate of advancing the data sovereignty and information-related capacity development of First Nations.

Among other matters, it advances the OCAP principles of First Nation “Ownership, Control, Access, and Possession” with regard to governmental information management.
A First Nation contemplating a law on the management of governmental information would benefit substantially from the incorporation of OCAP principles, as a measure to rightfully assert sovereignty over the information within its purview.