Modernizing the Access to Information Act: An Opportune Time

Canada School of Public Service, Armchair Discussion

Presentation by Suzanne Legault

September 24, 2012

Canada’s Access to Information Act

In 2013, Canada will celebrate the 30th anniversary of the coming in to force of the federal Access to Information Act and the creation of the Office of the Information Commissioner of Canada.  The Office of the Information Commissioner will also turn 30 next year.

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 one of the first to enact such a law in a Westminster style parliamentary model of government.

The adoption of the Act was the result of decades of discussion and attempts, going back to 1960s, when a private member’s bill seeking to recognize the public’s right to access government records was read a first time.  This 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 almost two decades later.

The legislation passed with great promise. As in other pioneering jurisdictions, Canada’s Act was premised on the notion that transparency would make government more accountable and responsive to the needs of citizens. The Honourable Francis Fox, the then-Minister sponsoring the bill, said that the Act will make changes in our parliamentary institutions, changes which will have long-term consequences for our democracy.

The Act has provided a 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.

Changing Expectations

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.  Access to information underpins many of our most cherished rights and freedoms: freedom of expression, freedom of the press, right to vote are amongst some of the most apparent.

As the pervasiveness and sophistication of access to information laws has grown, so too has awareness of its benefits.  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.

Indeed, in his article published in 2002, The World’s Right to Know”, Thomas Blanton, Director of the National Security Archive at George Washington University, observes:

“Making good use of both moral and efficiency claims, the international freedom-of-information movement stands on the verge of changing the definition of democratic governance. . .The movement is creating a new norm, a new expectation and a new threshold requirement for any government to be considered a democracy.”

The need to debate the Act

In the debates leading up to the adoption of the Act, not all thought that the Act was enacted on strong foundations. Many deemed it flawed, because it:

  • included a long list of exemptions. Some of these relate to personal and third party information, national security, commercial interest of Canada, advice to government and international relations;
  • allowed certain classes of documents to be protected such as investigative records, advice to government, and records containing solicitor-client privilege;
  • required those making information requests to pay fees to access public information;
  • ignored public interest considerations; and
  • excluded policy advice to Cabinet (i.e. Cabinet Confidences) from its coverage.

Calls for reform came almost immediately and continued persistently ever since. While there has been much thoughtful discussion and debate, more often than not, changes to our access laws have been driven by other imperatives.

For example, the 1997 Krever Commission into the tainted blood scandal found that certain government documents had been deliberately destroyed in violation of the public’s right to access.  That same year, the Commission of Inquiry into the Deployment of Canadian Forces in Somalia, confirmed that essential information requested by a journalists had been held back or falsified.  The findings of these two inquiries led to the addition of sanctions under the Act.

In 2005, the Gomery Commission found that senior officials and Ministers failed to respect the spirit of the access to information, were late responding to information request and failed to document decisions.  The Federal Accountability Act was part of the federal government’s response to these findings. It amended the Access to Information Act by increasing the number of institutions subject to the Act, by introducing a legislated duty to assist applicants and added a number of institution-specific exemptions and exclusions.

Over the past several years, the annual reports of the current and previous Information Commissioners documented a number of ongoing challenges with the Act. Our investigations increasingly demonstrate the deficiencies in the law.  It is therefore not surprising that each Information Commissioner, in the 30 year history of the Office, has made recommendations for legislative reform.  Information Commissioners 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.

Recurring issues

Many recurring issues have been raised by previous information commissioners in their annual reports and special reports. A sample of the top issues are:

  1. Delays in the release of records by federal institutions

                   In the 2009-2010 Annual Report, we reported on a case against Industry Canada. In that case, Industry Canada took a 150-day extension to respond to the request. However, in order to take such an extension, Industry Canada had to claim it within the first 30 days after receiving the request, which it didn’t. The department missed that first deadline. Moreover, even with the extra 5 months, it failed to provide the requester with the records by the extended date. By the time we got involved a year and a half later, we discovered that little had been done to process the request. We learned that Industry Canada also put the request on hold for short periods of time over holidays. 

                   The Act allows institutions to claim time extensions under specific circumstances, but the extensions must be reasonable. In this case, it took two years for the requester to obtain the records from the department. Currently, there are no substantive consequences for federal institutions that fail to provide requested information within the prescribed timelines.

  1. Fees used as barriers to access requests

The Access to Information Act allows institutions to charge fees for every hour (after the first five hours) they reasonably need to search for records and prepare them for release. In one case, the CBC received 68 requests and assessed that the resulting processing fees would total several thousand dollars. The requester complained to us, stating that he considered the fees to be excessive. The requester also suggested that the CBC might be using the large fees as a general deterrent to requesters. We found that most of the fees were, in fact, unjustifiably high, in some instances due to mistakes made by inexperienced access staff.

Although in this case we did not find evidence that the CBC was using excessive fees as a way to deter requesters, they can become barriers for requesters. Further, given the state of record-keeping in the government, it is difficult to make the case for fees charged to search for records. The fee scheme in the Access to Information Regulations, which dates back to the 1980s, needs to be revisited to reflect the electronic-based environment in which all institutions work.

  1. Broad interpretation of certain exemptions

                   In 2011–2012, we investigated two complaints into whether institutions had properly withheld information under the law enforcement and investigations exemption about the costs of certain security operations. Both institutions—the Royal Canadian Mounted Police (RCMP) and the Canadian Air Transport Security Authority (CATSA)— claimed that releasing information about the aggregate costs of security operations could compromise their objectives by making it possible to determine human resource levels and deployment strategies, thus revealing gaps in security. In neither case, however, was the institution able to provide a cogent and evidence-based explanation that this was a probable outcome.

                   Institutions must provide evidence of a reasonable expectation of harm that would result from disclosure. Speculating about possible harm that may occur due to information derived from the released records is insufficient.

  1. Resources shortfalls:

                  In July 2009, Transport Canada received a request for information about the investigation of an accident that had occurred the previous year. The requester complained to us 18 months later when she still had not received a response. Our investigation found that Transport Canada had neglected the request for extended periods of time. We learned that this had happened because the institution did not have enough staff to handle the volume of requests it had to process. Indeed, the analyst handling this request had more than 60 other requests assigned to her. In the end, Transport Canada met its commitment date but it had to reassign the file to a consultant to be able to do so.

                  This investigation shows that institutions must devote adequate resources to fulfilling their duties under the Act. When an access to information office is understaffed, the right of requesters to a timely response is likely to be violated—in this case, severely.

Past reform proposals

It has become apparent that the once state of the art legislation enacted by Canada in the 80s has fallen behind the legislative innovations at both the provincial, territorial and international levels. In the absence of any legislatively mandated review, the law has remained static because most calls for reform have not borne fruit. The Act is a quasi-constitutional piece of legislation that confers duties on government and ascribes rights to citizens.  Legislation of this nature, that expresses the core values of citizens, cannot remain static; it must continue to evolve. 

The last two significant calls for reforms came from the last two former Information Commissioners, John Reid and Robert Marleau.

Commissioner Reid, at the request of Standing Committee on Access to Information, Privacy and Ethics (ETHI), tabled a draft reform bill called Open Government Act in Committee in October 2005. The proposed bill rewrote the Access to Information Act, including changing its name. The proposal expanded the number of institutions to be covered by the act; it reduced the scope of limitations permitted by the act and it expanded the powers of oversight by the commissioner. In November 2005, ETHI recommended “that the Justice Minister consider the advisability of introducing before the end of the Session legislation in the House of Commons based on the provisions of the “Open Government Act” presented by Information Commissioner John Reid, with the assistance of the Legislative Counsel of the House of Commons.” Only a few proposals contained in the bill were adopted in 2006 under the Federal Accountability Act.

In March 2009, Commissioner Marleau made twelve recommendations that were urgently needed to modernize the access to information regime and catch up with more progressive regimes both nationally and internationally. The changes addressed the general themes of the right of access to all, the coverage of the Act, the compliance model, the mandates of public education, research and advice for the Information Commissioner and timeliness. The recommendations only tackled the most pressing matters. Although ETHI, in its June 2009 Report, agreed to most recommendations, none were subsequently legislated.

Today’s imperative

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 as pin-to-pin and SMS text messages, among others, create new challenges which must be addressed in order to protect requesters’ rights.

In the last five years, about 20 countries have enacted access to information laws. These laws take the approach that information is a natural resource. Theses legislative frameworks also allow for more information to be accessible through proactive disclosure practices.

Challenges facing access to information are complex. They require a thoughtful and comprehensive response, not a piecemeal one.  Ideally, a process of consultation, review and reflection would inform this response.

Consultations

Any citizen can play a role in the ongoing dialogue about how to keep Canada’s access to information regime relevant and effective. They can do so by sharing their views on issues of concern. Later this week, I will initiate an open dialogue with access to information experts, key stakeholders and with Canadians. Drawing on comparative research, past reform efforts and our own in-house expertise, we will solicit 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 coverage of the Act, exemptions and exclusions, and so on.

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.