A Report Card on Canada's Access to Information System

Panel - Vancouver 20-20
October 10, 2013
E. McCarthy

Good afternoon. Thank you very much for inviting me to speak to you today.

Canada placed 55th on the RTI Global rating. Access to information and the federal government received a D- in the Canadian Journalists for Free Expression's latest annual report card. It received an F in the two previous years. In Stanley Tromp’s comprehensive book Fallen Behind, he concludes that Canada fails to meet international access to information standards on 12 key points.

Performance statistics published by the Treasury Board Secretariat show that:

Requests for information are increasing (from 35,000 in 2009-10 to over 43,000 in last fiscal but still have not reached the 50,000 forecasted in 1983);

Timeliness has decreased for the third year in a row. Currently 55.3% of requests are responded to within 30 days – 10 years ago 69% of requests were responded to in 30 days;

In 2011-2012 18.2 percent of requests resulted in all records being disclosed; 10 years ago it was 40%.

On a positive note, in response to a recommendation made by our office, the federal government now requires institutions to post summaries of completed requests online and has piloted a system for online requests and electronic payment.

Although Canada has joined the Open Government Partnership and implemented an action plan it has effectively ignored a call by all Canadian information commissioners and ombudspersons to include the modernization of the federal access legislation as one of its OGP commitments.

As for our office, we are experiencing a significant increase in complaints this fiscal year. We have received 40% more complaints over last year and if the trend continues we are projecting that we will receive over 2,200 complaints.

One troubling trend that we have noticed in our incoming complaints is an increase in the number of complaints about timeliness and the assessment of fees. These are up by over 7% to date.

We have also noticed a substantial increase in complaints about missing records or incomplete responses - now more than 30% of our refusal complaints.

These trends are, in our view, cause for concern.

So what should we do?

We certainly must not give up.

The right of access to information in Canada is a quasi-constitutional right which, in specific circumstances is also protected by our right to freedom of expression.

It has been recognized in a number of cases as a fundamental right at the international level.

Parliament has created legal obligations which federal institutions are not meeting.

Institutions frequently tell us that they are overwhelmed, that they are not sufficiently resourced, that ATIP interferes with important operational matters and is not a priority.

This fails to recognize the legal obligations created by the Act as well as the public interest in receiving timely information.

As Winston Churchill once said: “It is not enough that we do our best, sometimes we have to do what is required.”

At a minimum government institutions must meet their obligations under the current legislation.

Institutions must be properly resourced based on an understanding that access to information is a statutory obligation and that the public has a right to public information created by public servants.

A cultural shift is also required. Institutional heads must be held to account for the performance of the access function in their institutions.

Government must also manage information more effectively; this should include the addition of an overarching legal duty to document in the Access Act.

Finally, after 30 years of experience with the current legislation, it is time for a comprehensive review of the Act.

Every Commissioner, since 1983, has advocated for amendments to the Act. Very few amendments have been adopted.

Around the world, we are seeing innovation and the establishment of international norms while here in Canada, our law remains unchanged.

This fall, after an extensive consultation with the public, Commissioner Legault will be tabling a special report to Parliament setting out her recommendations for legislative reform.

Some of the key areas to reform are:

Coverage

Coverage of the Act should be extended to Ministers' offices, Parliament and judicial administration. The Act should also be extended to cover the delivery of public services by private entities.

Timeliness

Access delayed is access denied. The current regime set out in the Act is clearly insufficient. The Act should be amended to require that extensions be limited and that any extension beyond the legislative requirements be subject to an effective review and remedy. An example of this is the 1,110 day extension taken by the

Department of National Defence which is the subject of an ongoing judicial review application.

Exclusions

Currently, there are a number of exclusions in the Act, including an exclusion for Cabinet documents. At the federal level, the Commissioner is not allowed to review documents over which this exclusion is claimed. All decisions to withhold government information should, at a minimum, be reviewable by the Commissioner.

More effective enforcement

The Commissioner will be recommending that her office be given order making power over, at the minimum, administrative matters and possibly in relation to refusals.

This brings me to my final point – the need for a presumptive public interest override in access to information legislation.

As stated in the joint resolution issued by the Federal Provincial and Territorial Commissioners and ombudspersons this week: recent revelations about government surveillance programs have prompted calls for increased transparency and greater oversight of national security initiatives. The recently published Tshwane Principles on Freedom of Information and National Security state that there should be a presumptive public interest override in certain circumstances. Examples of instances in which a presumptive public interest override would be applicable are:

  • Violations of international human rights and humanitarian law
  • Public health, public safety or the environment
  • Decisions to use armed force or acquire weapons of mass destruction
  • Financing of national security agencies

In closing, I refer you to the recent statements made by Canada's Information Commissioner on Right to Know Day September 28: Canada must not be satisfied with a D-; we must aim for an A+. We must reclaim our place as a leader in access to information and not be content with a 55th place finish.

Government has the power to reach this goal. Canadians deserve nothing less.