“A Canadian Vision for Access to Information”

Speaking Notes for Suzanne Legault Information Commissioner of Canada to the 2013 Access and Privacy Conference

Edmonton, Alberta - June 13, 2013

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Acknowledgements

It is an honour to be your keynote speaker at the 2013 Access and Privacy Conference.

I would like to recognize the University of Alberta, and specifically the Information Access and Protection of Privacy (IAPP) program, for its excellent work in developing understanding in the fields of access to information and privacy, and for helping to train individuals who are vital to these two important functions of our democratic process in Canada.

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Introduction

In a couple of weeks on July 1st, Canadians will be celebrating Canada Day – Canada’s 146th birthday.

But how many Canadians will be aware that on that same day we will be marking the 30th anniversary of the coming into force of the federal Access to Information Act?

For many Canadians, access to information flies under the radar – and yet, it is a cornerstone of our democratic rights and freedoms.

In fact, the Access to Information Act began in the heady days of the early 1980s.

The Charter of Rights and Freedoms had just received Royal Assent in April 1982.

Pierre-Elliott Trudeau was the Prime Minister of Canada; Peter Lougheed was the Premier of Alberta; and a young Michael Jackson’s Thriller topped the pop charts for 37 weeks.

Not only were politics and entertainment different, but so too was the concept of information – what it was, how it was stored, how it was transmitted, and how it was received.

The Commodore 64 had just come out in the spring of 1982 – that’s a computer, not a car – and it basically became the first readily available computing device for the ordinary public.

Some people compare it to the Model T Ford.

Cell phones were large and clunky and were used exclusively for making phone calls – not watching movies or sending data packages, and the Internet was still a decade away from commercialization.

Today, I would like to reflect on the first 30 years of access-to-information legislation in Canada – some highlights and a couple of lowlights too.

I would like to assess the current state of access to information in Canada.

And, most importantly, I would like to give you some ideas on how the access-to-information system must change in Canada to address today’s realities, respect requestors rights and meet its democratic objectives.


The Need for Change

A lot of factors have changed in the information environment over the last 30 years – and not only because of the advent of new technologies like smart phones, cloud computing and PIN to PIN communications.

Government structures were relatively simple and stable in 1983 compared to today. A department was responsible for a specific public policy area, such as health, agriculture, or employment.

But today, government is much more complex.

Issues are no longer bound by jurisdiction or limited to a single government organization.

We have seen the rise of what Janice Stein of the Munk School of Global Affairs (at the University of Toronto) calls “network government”.

Issues are spread across a number of policy areas and multiple governments may be involved.

Programs and outputs represent a convergence of ideas and objectives from many people and many organizations.

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Another critical change over the past 30 years has been in the administration of government.

Rather than relying on the personal wisdom and experience of a small cadre of deputy ministers and senior public servants, policy development and decision-making is now centred in the ministers’ offices. A recent presentation by David Mitchell, the President of the Public Policy Forum, highlighted the fact that at the federal level, the turnover of deputy ministers is now faster than the change of ministers.

Governments also created quasi-commercial entities and special operating agencies – expanding the type and number of government structures. Partnerships with the private sector are expanding. Governments are streamlining their operations to become more efficient and reduce spending, leading to centralization of operations.

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New technologies, new government structures, new processes – these have all combined to create enormous pressures on records management systems, raise issues of preservation of records of business value and issues of control over records to name but a few issues.

Many records management systems still in place were designed for an era of paper-based information.

The speed, methods of transmission and sheer volume of electronic data continue to challenge government’s ability to collect, retain, manage and share information with the public.

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Thirty years is a long time - more than a generation.

With a generational shift come new values and attitudes, including new ideas about information, privacy, and individual rights.

There is a new generation of information consumers in Canada in 2013, with a different perspective on the value and importance of government information in the hands of the public.

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Despite these fundamental changes, one thing did not change - the Access to Information Act itself, except for piecemeal modifications that in many cases have actually limited, rather than expanded its scope.

The theme of this conference is “We Stand on Guard” - and we should and we do.

But if I might suggest a small adjustment to the title – based on 30 years of experience with access to information – it is time for a “changing of the guard”.

Canada has changed.

Information, technology, government structures and processes, public values and attitudes have changed.

And yet legislation has not kept up with these developments.

The access-to-information user is faced with a mosaic of laws and regulations across the country, even though there has been convergence of issues, systems and processes.

There is a need for consistent and universal standards.

There is a need for the access-to-information community to work even more collectively.

And, most importantly, there is a need to amend the Access to Information Act to bring it up-to-date.


A Framework for Change

Fortunately, 30 years also provides some history, some experience, and some building blocks on which to create future legislation and support systems. Our international counterparts are presenting us with new design and architectural ideas.

In our recent Open Dialogue consultation on reform of the Access to Information Act, Alasdair Roberts made an important contribution which sets out five critical elements that must be examined.

1. First and foremost – access-to-information legislation – with as broad a scope as possible.

2. Second, a community of potential users who understand how to make ATI requests.

3. Third, administrative capacity within government departments to handle requests.

4. Fourth, capacity within enforcement agencies to properly address complaints.

5. And fifth, “a well-organized constituency of non-governmental stakeholders who are capable of articulating complaints about weaknesses in the law, monitoring against government backsliding, and importing innovations in law and practice from other jurisdictions”.


1.The Access to Information Act

Let me speak briefly about each of Roberts’ critical elements for reform.

First, the Access to Information Act itself.

In the early years of the Act – not unlike with the Charter of Rights and Freedoms - there was some apprehension about how it would affect the dynamics of politics and government in Canada.

Important case law developed at the Supreme Court of Canada provides some guidance and perspective.

One of the most critical cases was Dagg v. Canada Minister of Finance (1997, S.C.C.) where Justice LaForest on behalf of the Supreme Court of Canada wrote:

“The overarching purpose of access to information legislation is to facilitate democracy by helping to ensure that citizens have the information to participate meaningfully in the democratic process and that politicians and bureaucrats remain accountable to the citizenry.”

This established “access to information” as a quasi-constitutional right.

A more recent case before the Supreme Court of Canada was TheMinister of Public Safety and Security et al. v. Criminal Lawyers’ Association. The Court established that the Canadian Charter of Rights and Freedoms – under section 2 (b) which guarantees protection for freedom of expression - gives the public a limited right of access to government information. This right exists independently from the rights afforded by access to information regimes.

I know that you are familiar with this jurisprudence, but it bears repeating. It is against this backdrop that we must measure the adequacy of our respective access to information laws, and the governments performance in administering it.

The federal Act was amended from time to time, but never in a comprehensive manner.

In 1999, a private members’ bill added a criminal provision to the Act to prevent any deletion, destruction or falsification of records.

So far, I have referred the first two matters under their provision, none have resulted in prosecution.

It will be interesting to see the outcome of the Ontario investigation currently underway following our colleague’s investigation into the deletion of records in the Ontario Premier’s office.

The federal act was most recently amended in 2006, with the Federal Accountability Act, to add some 70 new institutions. However, most of these new additions were coupled with new exclusions or exemptions. The result has been much complexity of administration and in some cases, protracted litigation such as the famous CBC cases. On a positive note, it did add a legislated duty to assist.

Perhaps, the most egregious amendments are those that have gone mostly unnoticed, but have in, in my view, slowly eroded our access rights. I am talking about the increasing number of “peremptory” provisions. At the federal level, we started with about 30 pieces of legislation, that number has just about doubled. As former Alberta Commissioner once said peremptory provisions are transforming our ATI laws into a piece of swiss cheese.

Other case law has also had some major impact on limiting access rights of Canadians. One case that put some limitations on the current ATI Act and my Office was the PM’agenda case Canada (Information Commissioner) v. Canada (Minister of National Defence) (2011 SCC 25) where the Prime Minister’s Office and the Ministers’ offices were ruled to be not part of the government institutions for which they are responsible, with the caveat that some information contained in these offices may be departmental in nature.

The Court did establish a test that would allow these departmental records to be accessible under the Access to Information Act. The divide between what constitutes a ministerial record and departmental record is far from clear.

Further,, the TBS has just issued an “implementation report” , this decision, adding a new test on ATIP shops, whereby they must also assess whether they have reasonable grounds to believe that departmental records responsive to the request would be located within ministers offices before tasking them, particularly in context of speed of sharing of info on electronic devices. 


2. The User Community

Roberts’ second critical element is the user community.

When Canadian legislation was adopted in 1983, only a few other countries such as Sweden, Finland, Norway and the USA had similar legislation.

ATI was seen as a unique, very restricted area, reserved for specialists and “information junkies”.

And that, in fact, was the case for the first 15 or 20 years of the Canadian legislation’s history.

Users were primarily businesses and the media.

But over the last decade, we have seen increased use of ATI by individuals.

It is now much more common to see media stories that hinge on information received from access requests.

However, Canadians generally are still unfamiliar with the content and scope of the Access to Information Act.

This is in large part due to the fact that my office still has no research or education mandate.

I am quite sure, for instance that until recently most Canadians believed that the House of Commons and Senate were covered by the Act –which, of course, they are not.

Canadians may now understand why they should!


3. Government Capacity and Administration

Roberts’ third element for a well-functioning, access-to-information system is the administrative capacity within government departments to handle requests. At the federal level, we saw, in the early days of the operation of the act a fairly continuous improvement in the performance of institutions.

Since 2002, or so, there has been a steady decline in performance.

This past year has been particularly worrisome.

Government continues to cut back on financial and human resources has led to a significant increase in administrative complaints over the last year. 42 % increase year over year.

Some institutions are failing to meet their basic obligations under the Act.

One recent matter best illustrate this deterioration.

The current case before the Federal Court with the Department of National Defence where the institution took a 1100 days extension.


4. The Office of the Information Commissioner of Canada

Roberts’ fourth critical element is the capacity of enforcement agencies to properly address complaints.

The importance of this point was made in the case Bronskill v. Minister of Canadian Heritage (2011 FC 983). In his ruling, Justice Noel wrote:

“Suffice to say that the Information Commissioner’s mandate is one that should be taken with the utmost vigour and energy.”

In my first message as Interim Information Commissioner of Canada in our 2009-2010 Annual Report, I wrote that I would:

“make full use of all the powers and tools I have to maximize adherence to legislative requirements, as set out in our compliance continuum.”

I have held firm to that commitment over the past four years.

With the help of a dedicated staff, new business processes, and a more strategic and proactive approach to our responsibilities, we have closed many of our oldest cases, and reduced our inventory of complaints substantially (by 28.5%) since April 2009. For a fourth year in a row, we have completed more files than what we have received during the year.

But doing our best may not be good enough.

Our median turnaround time is now 215 days but, more importantly, 86 days from the day they are assigned to an investigator.

That means there is a large gap between when we first receive a complaint and when an investigator is actually assigned, because we simply don’t have enough investigators.

The number of complaints this past year has increased by about 8% - my budget was cut by about 8% as well with no new resources, the situation can only get worse.

So we are falling behind – not because we don’t have the energy, insight or innovation.

We simply don’t have enough resources.

And the real impact is that Canadians are not getting the access to government information to which they are entitled by legislation.

Call it a capacity gap, call it what you will – the result is further expansion of the “democratic deficit” and the erosion of citizens’ rights.


5. The Community of Stakeholders

Alasdair Roberts’ fifth and final element for a healthy access-to-information system is a “well-organized constituency of non-governmental stakeholders”.

On this one, I think, we have done much better over the first 30 years. Our community of Information and Privacy Commissioners is very active. The Law and Democracy group has focused its efforts in Canada over the past few years. Internationally, FIPA, CBA, CJFE, Democracy Watch, has been more active.

There are now 93 countries with access-to-information legislation and a growing network of Commissioners and NGOs internationally supporting the Open Government Partnership movement.

A couple of important milestones in Canada were the Open Government Resolution of Canada’s Access to Information and Privacy Commissioners signed in Whitehorse on September 1, 2010, and also the Open Government letter to the President of the Treasury Board in January, 2012.

These initiatives have already seen some positive results.

For example, the Government of Canada regularly publishes information on the resolution of ATI complaints, and publishing increasing numbers of datasets on its web portal.


Current Status of Access to Information in Canada

Against this backdrop and with 30 years under our belt, how is Canada – once the leader in access to information in the world – doing today?

According to the most recent rankings of the Centre of Law and Democracy – not so well on the legislative front.

In its most recent survey, Canada ranked 55th amongst 93 nations rated.

At one point, Canada’s legislation was a model for others to follow.

Now, our legislation is no longer state-of-the-art.

Other jurisdictions have far more modern and progressive legislation.

Unfortunately, here in Canada, jurisdictions tend to follow each other and recent legislative reforms in Newfoundland and Labrador have seen a preference for lesser norms and standards.

So there have been many ups and downs in the area of access to information in Canada in its first 30 years. And, on balance, the only conclusion we can come to is if our access regime is to live up to its intended purpose, there is still much work to do.


Looking to the Future

My vision for access to information in Canada is to have Canadians benefit from an exemplary access-to-information regime. The new model would value public sector information as a national resource, uphold information rights that ensure government transparency, accountability and citizen engagement and, be supported by a state-of-the-art legislative framework.

So, what has to change to restore Canada to a leadership position in access to information?

The first priority must be the immediate reform of the Access to Information Act.

We have witnessed a steady erosion of access rights in Canada over the past 30 years.

Our Office has conducted an Open Dialogue process over the past few months seeking ideas on possible reforms of the ATI Act.

We received more than 40 submissions and they are available on our website.

We will be bringing formal recommendations to Parliament for reform of the Act this fall.

Obviously, we will be looking to include more public institutions such as Parliament, under the purview of the Act.

This is not something we are now advocating to take advantage of, or fan the fires of, recent controversy in the Senate.

This proposed reform is something for which I, and previous Commissioners, are already on the public record.

To me, it is a case of “the shoemaker’s children having holes in their shoes”.

Access to information is seen as a cornerstone of democracy, accountability, transparency, and individual rights, and yet the bodies that enable and enact the legislation are themselves not subject to similar provisions.

It is the classic conundrum of: Who regulates the regulators? Who guards the guards? Who polices the police?

Canada’s access-to-information legislation – like the shoemaker’s children’s shoes – has tremendous holes in it.

They have to be repaired.

Entities like the Organization of American States have developed forms of model legislation.

But, in my view, we need to develop unique, “made in Canada” legislation that will help align the various pieces of Canadian legislation.

We need to take the best laws have to offer in Canada and around the world, and adapt it to the Canadian context.

In addition to legislative change, we need to continue to increase our collective action.

We need to better integrate our systems and processes.

We need to continue to train ATI specialists and investigators.

We need to continue building our own professional networks and contacts.

We need to continue our communications and outreach efforts with Canadians such as Right to Know Week.

We need to continue to pressure our elected leaders to get the access regimes that fully implement our democratic right.

I am often asked – everyone has tried before and and failed, what is different now.


Conclusion

Abraham Lincoln said (Speech of the Sub-Treasury, 1839):

“The possibility that we may fail in the struggle ought not to deter us from the support of a cause we believe to be just.”

The struggle for better access-to-information legislation is a just cause for Canadians and we should not be bowed by the failure of previous efforts over the past 30 years to reform the Act.

Access to government information is central to democratic rights. In fact, in many countries, freedom of information is recognized as a human right.

It is the public who have the most to win – or lose.

For a number of reasons, accountability and transparency are “top of mind” for many Canadians today.

As an access-to-information community we must work diligently and collectively to tap into that renewed public interest and recognition.

As Alasdair Roberts says in his paper:

“There is a world of experience to be drawn upon while updating the Access to Information Act, and no good reason why it should not be done with boldness.”

The stakes are high.

In 2013, more than ever, information is power.

Canada’s international reputation is on the line.

Access to information supports democracy, freedom, accountability and transparency.

As a community, we must remain vigilant and robust in protecting the rights of Canadians to access public information.

Together, we must act boldly.