Presentation by Information Commissioner Suzanne Legault, 2012 BC Information Summit
Vancouver, British Columbia
September 19, 2012
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Thank you for the opportunity to say a few words. I would like to congratulate the organizers for putting together such an interesting line-up.
In 2013, the Access to Information Act will see the 30th anniversary of its coming into force. My office will also turn 30 next year. With these two accomplishments in sight, it is an especially opportune moment to reflect on the past, the present and future of access to information.
The Act, at the time of its Royal Assent, was characterized as “groundbreaking”. Canada was one of a handful of countries to enact freedom of information legislation. It was also among the first to do so in a Westminster style parliamentary model of government.
The adoption of the Act was the culmination of a lengthy process of dialogue and debate that witnessed the tabling, in 1965, of a private member’s bill called “An Act to better assure the Public’s Rights to Freedom of Access to Public Documents and Information about Government Administration”. The bill never went beyond its first reading. But it provided the catalyst for further passionate debates that ultimately led to the adoption of the Access to Information Act in 1983.
The legislation passed with great promise. The Honorable Francis Fox, the sponsor of the bill, said at the time that the Act “…will make changes in our parliamentary institutions, changes which will have long-term consequences for our democracy.” History has proven him right!
The Act has been invaluable in providing a substantive legal and policy framework for:
- confirming the right of citizens to access government information;
- establishing a presumption in favour of disclosure;
- defining limitations or exceptions to these rights;
- imposing a duty on government to process requests in a timely, responsible and complete fashion; and
- clarifying the recourse available to individuals and organizations when they believe their information rights have not been respected.
These rights were further entrenched in our democratic institutions by the Supreme Court of Canada when it confirmed the quasi-constitutional nature of the Act. Mr. Justice Laforest stated that: “Rights to state-held information are designed to improve the workings of government; to make it more effective, responsive and accountable”
Flash-forward three decades and it is clear that the early architects of access to information laws were onto something.
The Act has been characterized as an essential component of a vibrant democratic society. It allows citizens to participate meaningfully in the democratic process, to hold government to account and exercise their right to know.
It also embodies many of our most cherished rights and freedoms: freedom of expression, freedom of the press, right to vote… and those are just the more obvious ones!
As the ubiquity and sophistication of access to information laws have grown, awareness of its benefits followed suit. While the original foundation for access to information laws remains intact—the right to information promotes accountability and keeps governments honest—a number of important new narratives have emerged and gained traction.
For example, most international human rights bodies now characterize access to information as a fundamental human right.
Business associations often stress that robust access to information laws can enhance competitiveness, efficiency and innovation by facilitating the flow of information between government and industry. And a growing number of advocates for participative democracy argue that effective access to information laws are essential because they empower ordinary citizens to influence the activities of public bodies for the public good.
In the debates leading up to the adoption of the Act, not everyone was convinced that the Act was enacted on strong foundations. Many called it flawed or imperfect because:
- its coverage was limited to the executive branch;
- it included a long list of exemptions, many mandatory and class based, without an injury test;
- it required those making information requests to pay fees to access public information;
- it gave limited importance to public interest in disclosure;
- it excluded Cabinet Confidences from its coverage; and
- it did not have a role for the Commissioner in education and research.
Calls for reform came almost immediately and have continued persistently ever since. This is a promising development: legislation of this nature, that expresses the core values of citizens, cannot and should not remain static; it must continue to evolve.
In 2012, in response to the Government consultation on its Open Government Partnership (OGP), all Information and Privacy Commissioners across Canada recommended: “That the Government of Canada commit to increasing public integrity by modernizing the federal Access to Information Act”. They wrote that the OGP offers an excellent opportunity for the Government of Canada to amend the Act and align it with current government processes and progressive national and international norms. The Information and Privacy Commissioners recommend that the government conduct a comprehensive review of the legislation with the goal of modernizing it and re-establishing Canada’s leadership position.
A sound and progressive legislative framework is a key component of any move towards government 2.0, Open Government or a participation in the OGP.
In this context, the Centre for Law and Democracy’s Right to Information Index ranks Canada in 54th position out of 90 countries. “Canada’s Access to Information Act, while cutting edge in 1983, has not been significantly updated since then, and reflects outdated norms. Canada’s lax timelines, imposition of access fees, lack of proper public interest override, and blanket exemptions for certain political offices all contravene international standards for the right of access”.
We also need to continue the discussion because rapidly evolving technologies and recent developments at the international level pose a new set of questions and parameters. New forms of communication, such pin-to-pin and SMS text messages, among others, create new challenges, which must be addressed in order to protect requesters’ rights.
Suffice it to say that over the past several years, my annual reports and those of my predecessors have documented a number of ongoing challenges with the Act. They have also underscored the need to ensure the OIC has the 21st century tools and resources it requires to stay abreast of technological advances while meeting current and evolving obligations under the Act.
As I can attest from my own experience, my Office’s investigations increasingly demonstrate the deficiencies in the law. So, it seems fitting that after two-plus year as Information Commissioner, I take stock of where we are in terms of access to information, in Canada and internationally – and where we are going. The time has come for an in-depth review.
To that end, I will initiate a consultation and dialogue with access to information experts, key stakeholders and with Canadians.
Drawing on comparative research, past reform efforts and our own in-house expertise, I will solicit your input and advice on many recurring issues which raise a fair share of questions. These issues deal with all aspects of access to information, such as delays, coverage of the Act, exemptions and exclusions, the roles and powers of my office, records management and so on.
We will use our website as the focal point for this dialogue. The dialogue will start at the end of the month during Right to Know Week and will continue during the fall. To make the process manageable, informed and accessible, we plan to highlight for discussion general and specific questions on the various aspects of the law.
You are key stakeholders in this process. I invite all of you to join in the discussion.
Challenges facing access to information are complex. They require a thoughtful and comprehensive response, not a piecemeal one. Ideally, this response would be informed by a process of consultation, review and reflection, in keeping with the Open Government principle of open dialogue.
In closing, in the words of Barack Obama “change will not come if we wait for some other person or some other time. We are the ones we've been waiting for. We are the change that we seek”. It is the role of the Information Commissioner to serve as a catalyst for informed discussion of the strengths and weaknesses of the access to information system. I hope that you will join in the discussion.