This paper focuses on the increasing significance of flexibility arguments to UK employment equality law. It makes use of the well-evidenced legal and governmental preoccupation with working time to investigate the production and circulation of concepts of flexibility through equality law case reports from the period 2001–2010. With case reports as my main focus, I trace how flexibility emerges through legal documental networks, so as to work out the contours of our collectively imagined “efficient” and “well-balanced” working practices. Human actors and significant non-human actors combine within and across case reports to produce and support a general set of understandings about legal flexibility. These understandings, as we have seen, suggest that flexibility is just as much a matter of organic or physical capabilities as it is of time. Concepts of elasticity, adaptability, and balance, therefore, force us to reconsider the meanings and motivations of governmental and oppositional constructions of work-life dilemmas.

Antidiscrimination legislation is the vehicle most commonly used by communities to demand equality, but how should such law best be employed? In this article, the Ontario Human Rights Tribunal decision in Hogan v. Ontario (Health and Long-term Care) is examined in relation to the removal of sex reassignment surgery from the Alberta Healthcare Insurance Plan in order to better understand the legal strategies designed to remedy different kinds of discrimination. This article argues that trans issues (involving people who identify as transgender, transsexual, or trans) ought not to be seen as additions to gay and lesbian issues legally or politically. Moreover, this article demonstrates that the fight for formal inclusion in legislation as a discrete or insular minority should be rejected by trans activists, as other legal strategies are better positioned to combat the processes of transphobia, thus potentially offering important steps towards substantive equality.

This article is based on fieldwork conducted in Montreal and Ottawa, between 2005 and 2009, with homeless persons in the criminal justice system and actors working at various levels in the criminalization and prosecution process. It analyses the strategies of control applied to homeless persons and their experiences in the judicial system in relation to criminal offences associated with their use of public spaces. The authors suggest that the issue of the visibility or invisibility of homeless persons is central to the tensions that characterize their dealings with the criminal justice system: although their visibility in public spaces contributes to their identification and profiling based on social characteristics, invisibility leads to violations of their fundamental rights and is a barrier to access to justice when they become involved with the justice system.

While numerous contemporary studies, in both social psychology and sociology of the law, have addressed legal socialization and legal consciousness on the part of individuals, little work has been done on the complex social construction of the need and demand for legal services. This is by no means a rhetorical question; it involves a number of competing definitions of the relationship between the legal profession and the public, and thus justifies the legal services currently offered. The author shows that policies relating to access to the law and the justice system in France today seek to focus on the user, which means that users must be able to characterize their situation in legal terms and apply to the courts. The process of raising individuals' consciousness of the law is examined against the backdrop of increasing liberalization of social policies.

For most scholars, what we choose to research is largely determined by personal interest and a desire to produce new knowledge that will meaningfully contribute to the advancement of our chosen field of study. For those of us who do work in the areas of criminology and socio-legal studies, this pursuit of knowledge often requires that we gain access to public officials, state institutions, or government documents to collect necessary data. Regardless of whether we engage in quantitative or qualitative research, the findings we produce are highly dependent upon the information we are able to gather. Access therefore emerges as a key topic for researchers, raising important methodological concerns as well as broader political questions regarding the availability of information in liberal democracies.

However, although gaining access to data is a crucial step in the research process, it is one that seems to garner little scholarly attention within criminological and socio-legal circles. Indeed, although there are a countless number of textbooks on the market (many of which are used every year as required reading in undergraduate and graduate research methods classes) that discuss the various ways researchers can go about collecting and analysing data, very little is said about the processes involved in negotiating entry with the gate-keepers of these data. Much of what is discussed in most methods text-books and classrooms is often limited to questions of ethics and the moral duties and obligations of researchers to their participants, rather than critical considerations related to the actual practice of gaining access.

The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears … All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government.

Although challenges and barriers to researchers' access are common across any number of empirical sites in socio-legal research—as suggested by the very nature of this special issue and the call for papers that generated it—it has been suggested recently that prisons and other institutions of penal confinement provide a particularly troubling case study. For instance, Loïc Wacquant argues that “the ethnography of the prison thus went into eclipse at the very moment when it was most urgently needed on both scientific and political grounds.” Although the causes of the decline as understood by Wacquant transcend problems with access (principally, for Wacquant, a transition from the “maternalist (semi-) welfare state to the paternalist penal state”), access, by all accounts, is an ongoing and significant concern. As Kimberly Jacob Arriola summarizes, “conducting research in correctional settings is extremely difficult. Inmates (and any other institutionalized population for that matter) are considered a special population deserving of additional research protections… Moreover, many correctional administrators may not see research as a priority and not want researchers ‘poking around’ for fear that they may discover something less flattering.”

Of course, one must be careful not to overstate the paucity of research inside penal institutions, especially given that the decline was probably less severe outside the US, and given that the last half dozen or so years have marked somewhat of a renaissance of scholarship on life inside carceral facilities. Also, the partial decline should not be taken as grounds for lionizing those researchers who do gain/have gained access to prisons and jails to carry out socio-legal research.

There is concern among socio-legal scholars about the relationship that has formed between scholarly research and public policy. Pat Carlen contends that in the case of criminology, this relationship sees scholars increasingly struggle to maintain their critical capacity. The problem, according to Carlen, is that scholars trying to increase research output through partnership with policy makers often find this partnership hinges on an agreement that any research produced will conform to the parameters of the policy makers' needs. Furthermore, when scholars do not seek partnership with policy makers, they may face political hurdles in gaining access to institutional data. Scholars may be required to demonstrate the direct policy relevance of their research before policy makers will consider the type and extent of access granted. These kinds of barriers to data access have the potential to adversely impact the critical merit of socio-legal scholarship.

This paper employs my own research as a case study to explore some of the foundations for socio-legal scholars' concerns about the appearance and impact of barriers to institutional data. My research aimed to explore how correctional agencies approach the offender rehabilitation principle of responsivity in relation to Indigenous offenders. Contemporary correctional literature states that to be responsive, correctional agencies must identify variances among offenders that may affect the delivery and reception of programs. Significantly, however, it is unclear what, if anything, correctional agencies should do to accommodate variances once identified. Accordingly, I sought access to correctional agencies to interview staff working in the areas of Indigenous offender rehabilitation policy and service who could elaborate on their agencies' approach to Indigenous offender responsivity. Agencies in four jurisdictions were approached. In seeking access to this institutional data, I encountered two main barriers that impacted the scope and direction of the project in unexpected ways.

Parliament recognized the fundamental importance of protecting access to government information when it enacted the federal Access to Information Act. When the Act came into force on Canada Day 1983, Canada was just one of a handful of countries to have legislative protection of access to government information. Now, 27 years later, over 80 countries across the globe have enacted some form of access to information legislation.

Although the world has followed Canada's lead in recognizing the importance of protecting access to government information, Canada has “fallen behind” (to borrow the descriptor used by journalist and author Stanley Tromp) and may even be “backsliding” (in the words of Laura Neuman of the Carter Center). What has gone wrong with the federal access regime? Why should legal studies scholars care? I address these questions in this article. I start by outlining the symbiotic role between academics and access to government information. I then identify three key factors that have contributed to the decline of the federal access regime: administrative resistance, legislative degeneration, and political indifference. Finally, I close by briefly discussing three ways in which scholars can continue to work to protect and promote access to information in Canada.

Academics and Access

Academics took the lead in advocating for access to government information in the 1960s and 1970s in Canada. One of the earliest advocates was Donald C. Rowat, a professor of Political Science at Carleton University. In a 1965 article entitled “How Much Administrative Secrecy?”, he summarized the key arguments in favour of protecting access to government information, writing

Most of the draft documents, memoranda, communications, and other textual materials amassed by government agencies do not become public record unless efforts are taken to obtain their release. One mechanism for doing so is “access to information” (ATI) or “freedom of information” (FOI) law. Individuals and organizations in Canada have a quasi-constitutional right to request information from federal, provincial, and municipal levels of government. A layer of bureaucracy has been created to handle these requests and manage the disclosure of information, with many organizations having special divisions, coordinators, and associated personnel for this purpose. The vast majority of public organizations are subject to the federal Access to Information Act (ATIA) or the provincial and municipal equivalents.

We have been using ATI requests to get at spectrum of internal government texts. At one end of the spectrum, we are seeking what Gary Marx calls “dirty data” produced by policing, national security, and intelligence agencies. Dirty data represent “information which [are] kept secret and whose revelation would be discrediting or costly in terms of various types of sanctioning.” This material can take the form of the quintessential “smoking gun” document, or, more often, a seemingly innocuous trail of records that, upon analysis, can be illuminating. Dirty data are often kept from the public record. At the other end of the disclosure spectrum are those front-stage texts that represent “official discourse,” which are carefully crafted and released to the public according to government messaging campaigns.

Among prison scholars it is well known that access to penal institutions for the purposes of conducting research is not a given. For instance, in the Canadian context, some social researchers have been effectively barred from conducting studies inside prisons or have had to modify their research designs in order to enter the carceral. The ability to obtain unpublished records on imprisonment policies and practices in Canada has also been cited as a cumbersome process that often results in non-disclosure of the documents sought.

Beyond data collection, social researchers have also raised concerns about the challenges of communicating their findings to publics outside the academy. In criminology, in particular, scholars have been concerned with the perceived lack of influence academic work has had on public policy and public opinion. These interventions, while not novel, have resulted in calls for a public criminology, renewing a discussion on how to disseminate research to non-academic audiences.

Although much of the access to information literature is focused on the techniques used to obtain data as well as the barriers encountered during the process, and the public criminology literature is centred principally around the question of how to reach and influence those outside the halls of the university, few have examined how data collection and dissemination activities shape subsequent information flows. Here, I am not referring to the moments when and sites where the “policing of criminological knowledge” occur that mediate access to data sources and diffusion opportunities based on the epistemological orientations and political agendas of gatekeepers.

In perhaps no other area of scholarship is access to information (ATI) legislation as contentious and the stakes so high as in policing and security research. Although ATI has become an important mechanism by which researchers have been able to analyse security and police practices, there remain significant legislative barriers preventing access. A decade after 9/11, the need for increased scrutiny of government agencies tasked with security and policing remains high, as is evident from the proliferation of public and private policing, the advance of a general societal risk aversion, and the now ubiquitous nature of state security and surveillance. In this article we offer first-hand accounts that highlight the institutional imbalances between police organizations and researchers, and consider the potential long-term effects of ATI in this area of scholarship. ATI legislation in Canada is increasingly becoming both a tool for researchers to penetrate policing organizations and also a weapon with which security institutions can stymie critical inquiry.

The significant amount of Canadian ATI research that has stemmed from national security scholars shows the difficulties faced in this field when attempting to exercise the “right to know.” The strident lack of transparency within security and policing institutions tips the balance of access versus secrecy towards the latter, under the ever-present assumption that secrecy equals security. However, this area of research plays an important role in political discourse by fostering public dialogue and raising awareness of questionable and illegal security practices. As Larsen points out, we have seen ATI used recently to shed light on politicized security issues such as the Arar Inquiry, the campaign to repatriate Abousfian Abdelrazik, and, most recently, the Afghan detainee transfer scandal.

Race and racism have long played an important role in Canadian law and continue to do so. However, conducting research on race and criminal justice in Canada is difficult given the lack of readily available data that include information about race. We show that data on the race of victims and accused persons are being suppressed by police organizations in Canada and argue that suppression of race prevents quantitative anti-racism research while not preventing the use of these data by the police for racial profiling. We also argue that when powerful institutions, such as the police, have knowledge that they keep secret or refuse to discover, it serves the interests of those institutions at the expense of the public. Fears that reporting of racial data will result in racial profiling or the stigmatization of racialized communities are not assuaged by the repression of this information. Stigmatization may still occur, and racial profiling can continue to happen, but without public knowledge. Quantitative anti-racist research requires consistent, institutionalized reporting of race data through all aspects of Canadian justice. We outline what data are available, what data are needed, and where consistency is lacking. It is argued that institutional preferences for white-washed data, with race and ethnicity removed, should be subrogated to transparency.