The Nature and Value of Access to Information Laws in Canada and the EU: Ideals, Practices and Perspectives
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This research aims to address the rhetorical claims about transparency and access to information (ATI) by asking questions like: Why they are important, and if they are, are they worth of constitutional protection? The study engages in a doctrinal research with two dimensions, a conceptual and a normative one. The conceptual dimension includes the understanding of the meaning, perceptions, dynamics, tensions and values assigned to transparency and ATI. This dimension is explored through the study of two main jurisdictions (Canada and the EU) and two case studies (Ontario and Albania). The normative dimension in concerned with how the conceptual grounds shape the legal status and protection of ATI, and provides a framework that enables the recognition of ATI as a constitutional right. My analysis focuses on the users of the ATI process, and their practices. The conceptual dimension views transparency and access rights as political and societal constructs. They heavily depend on the political system at place, and their analysis should not start from expectations based on ideals, but potentials. The societal approach focuses on the public space and looks at transparency and ATI as having multiple functions. The thesis provides a set of standards against which the main rhetorical claims about transparency and the actual practice of ATI can be measured. The normative dimension takes a human rights perspective that focuses on the substance and the form. From a substance approach ATI rights are considered necessary and important in Canada. From a form approach Canada has a gap on how rights transform into positive law and penetrate the constitutional structure. This thesis offers a bridge to reconcile the substance and form approach. My argument points to a fundamental dichotomy of a human rights-based approach as found in the difference between an instrumentalist and an intrinsic approach. It argues that the right of ATI deserves recognition from both approaches. However, the thesis argues for the value of the intrinsic approach because it lends itself to a discussion of rights that have the potential to generate and shape ideas, create knowledge and enable engagement and participation.