Speaking Notes for Suzanne Legault Information Commissioner of Canada to the Annual Conference on Germain Brière Day and Right to Know Day at the University of Ottawa, Faculty of Civil Law

Ottawa, Ontario
September 28, 2013

Introduction

Hello and welcome everyone.

Today is International Right to Know Day — a special day designed to raise awareness of a citizen’s right to access to information and the promotion of open and transparent government. This day is celebrated in over 40 countries.

I would like to thank the University of Ottawa, Faculty of Civil Law for partnering with the Office and arranging today’s program which honours the memory of Germain Brière. And I would like to thank very sincerely the participants who have taken the time to share their knowledge and experience about access to information.

Because access to information is critical to the functioning of our democratic institutions.

Information is the DNA of ideas, policies and government actions.

Without the DNA code, one cannot understand how government operates. The federal Access to Information Act came into effect on July 1, 1983 — so this year is its 30th anniversary.

What effect have these special days and anniversaries had on actually increasing access to public information in Canada?

Today I will draw a picture of what I see on a day to day basis — the good, the bad, the ugly, and the just plain silly.

The Current ATI Situation in Canada

Over the past 30 years, the Access to Information Act has basically changed how citizens and governments interact.

One critical event was the 1997 decision of the Supreme Court of Canada [Dagg v Canada (Minister of Finance) – 1997 S.C.C.] in which Justice LaForest declared that:

"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."

By so doing, the court was recognizing “access to information” as a quasi-constitutional right.

With this legal underpinning, we have seen a steady growth in the number of access requests and the development of an ATI community. It is also with this legal underpinning - the fact that this is a quasi constitutional right - that we must assess our Government's performance in respecting Canadians right to know.

Every day there is a news story based on an access request.

More and more Canadians are interested in knowing what the government is up to and making requests for information, with requests coming from a broader cross-section (not just business, the media, and ATI specialists). There is, in my view, a shift occurring in the system. It is a new dynamic. Requests are coming from the public at large rather than experts. So are complaints.

Although we may come close this year, as of last year’s numbers, we have not reached the 50,000 requests mark expected by the government in 1984. And even with fewer requests than expected then, departments are struggling to keep up with demand.

And yet, in a recent interview on CBC’s The House, the minister responsible (Hon. Tony Clement) said:

“…we have been meeting to the best of our ability and I think to the best of the benchmarks, those requests for items of information.”

With all due respect this is just not good enough. It is not enough to do our best - the government has an obligation to do what is legally required to respect Canadians' quasi constitutional right to know.

In the past year our administrative complaints such as complaints about not meeting deadlines, have gone up significantly.

We are seeing more complaints about the actual information being released, with some departments being over-exuberant about redacting information or overusing certain of the ATI Act’s permitted exemptions.

I will give some specific examples in a moment.

If information were a commodity, the short summary would be — demand is up, supply is down.

Access to Information vs. Open Government

But the government would say that more information is available through its “open government” initiative.

There appears to be some confusion between “open government” and “access to information.”

The Open Government Initiative, the Open Government Partnership Action Plan and the G8 Open Data Charter point to our Government's intent to disclose more information proactively. All of these initiatives commit the Government to open and timely information. To quote from the Treasury Board Website, "the intent of the Government is to make a sharp turn toward enhanced transparency and unleashing the potential of open data and information. We are resolved to release all the data and information possible and to shifting the culture of the public sector.

I applaud this intent of the Government and I fully support it. Indeed I advocated for it to be adopted in Canada when I first became Commissioner. It is true that the government is putting more and more information online, more and more data bases are published in reusable formats. And don’t get me wrong. This is a good thing.

However, through the Open Government Initiatives, it is the government that chooses which information to provide, and when and how to release it.

The Government's commitment to open and transparent government cannot replace a strong access to information system.

As I wrote to the minister responsible a couple of weeks ago:

“An open government agenda without a commitment to modernize the ATIA will not address the democratic and accountability deficits at the federal level.”

Because I think that, with clear limits, Canadians do have a “right to know” what is going on in a timely manner.

Too often the knee-jerk reaction is to resist making straightforward information public.

The Natural Reluctance of Governments to Release Information

With 30 years’ experience, we have learned that there is a natural reluctance on the part of virtually all governments to release public information.

Former UK Prime Minister Tony Blair referred to himself in his memoirs as a “nincompoop” for introducing such legislation.

Why is this?

A lot of it is political. Governments are reluctant to give away party secrets or set themselves up for second-guessing.

Some of it is personal — to protect individuals from embarrassment, and, on occasion, to cover up wrongdoing.

Prevailing Attitudes Today

This reluctance of elected governments is transferred — whether consciously or unconsciously — to the public servants who administer policies and programs.

One of the mantras of federal public service reform in the 1990s was “speaking truth to power” — telling ministers and the Prime Minister the whole story, not just what they wanted to hear.

Interestingly, this internal soul-bearing never had an external equivalent — there was no “speaking truth to the public” movement.

So we see attitudes to the release of information that are protective, minimizing rather than maximizing the release of information.

And some departments do not allocate sufficient resources to keep up with ATI requests — this year one federal institution, for instance, simply stopped acknowledging receipt of requests under the legislation.

High-Profile Stories

Which brings me to the downright silly, which are in my opinion a waste of time and money and bog down our access system. There are many high-profile access to information stories.

Recently the so-called "revelations" (quote unquote) around the Chinese government’s loan of two giant pandas to zoos in Toronto and Calgary?

Most of the underlying Canada-China MOU was withheld by Environment Canada, citing the section of the Act dealing with disclosures that “reasonably could be expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada or the detection, prevention, or suppression of subversive or hostile activities.”

The whole world knows the pandas are on loan. And this information was released only after a long investigation.

In 2007, we had the case of a gift that then Minister of Foreign Affairs gave to his American counterpart, Secretary of State, Condoleezza Rice.

The gift — a bottle of Niagara ice wine.

The question — how much did it cost?

The response — cannot release information/might harm Canada-U.S. relations.

Eventually the information was released, but once again, only following a long investigation.

More recently, information has been released by the media on some of the details of a contract that former Minister David Dingwall had with Canada Post in 2002-2003, to give advice. Contract that would have earned him thousands of dollars.

La Presse made its initial request for information in 2008 — the information finally came out five years later, once again following a long investigation.

The Ordinary Stories

While there are many high-profile cases, it is the ordinary cases that the public does not see that worry me.

I see requesters stalled, eventually giving up because the time, cost, and effort of pursuing an access request are too great.

I received a complaint recently from a person in rural Ontario. In 2011, he made an access request. The analyst responsible told him that the department needed 210 extra days to answer the request. At the end of the 210 days, the individual followed up and was told that his case was “near completion.”

Several weeks later, the requester again inquired about the file and was told for a second time that the case was near completion, but that a new analyst had been assigned to his file and he would be contacted soon.

Several more weeks later, the requester followed up again, only to be told by the new analyst that a mistake had been made in the file, and that the requester would have to pay $800 before any documents could be sent.

Also, that the file was in the “final approval” stage. The requester mailed a cheque and then waited for his documents to arrive but several weeks later, the cheque had been cashed, but no documents had been sent.

He made a complaint to my office – this is what he wrote in his letter: “I am not sure how long ‘final approval stage’ is,” and “I really don’t think that what happened was the experience I am supposed to have in exercising my access to information rights.”

After our investigation, he did receive the records, and a refund for the fees.

But this is one Canadian who believes that the government is not respecting the law, or his rights.

In another egregious case, a department sought extensions of 1,110 days — over 3 years! After long negotiations with the department we were unable to get a commitment date for disclosure for the complainant and had to take the matter to court.

Interestingly, with a court date set for October, the information was just released in the past two weeks.

Other Major ATI Issues

Government and bureaucratic reluctance are not the only reasons the current ATI system is at risk.

I mentioned a lack of resources.

While the number of requests has grown, there has not been a corresponding increase in departmental resources — human and financial — to deal with them.

I am seeing signs of a system in crisis, where departments are unable to fulfil even their most basic obligations under the Act, let alone being proactive or meeting their “duty to assist.”

Departments merge, downsize, or disappear completely, making tracking of records more difficult.

In the past, policy development and decision-making relied on the wisdom and experience of a small group of deputy ministers and senior officials.

Now these functions are centred in ministers’ offices.

Currently, ministers’ offices and the Prime Minister’s office are not covered by the ATI Act according to a Supreme Court ruling in 2011 [Canada (Information Commissioner) v Canada (Minister of National Defence) et al 2011 SCC25].

The Court did note that some information in these offices might be deemed to be under the control of a government institution and therefore subject to the Act. The Court proposed a test for making this determination.

The test has not proven to be simple to apply. To complicate matters, the government has recently published an Implementation Report to instruct departments to only request documents in Ministers' office if they have reasonable grounds to believe that such documents are located there, after having reviewed all documents produced by the department. This additional test is not found in the SCC decision. I am convinced that this will generate complaints and that electronic records will not be preserved for sufficient periods of time to answer to this protracted process.

These limitations are part of what I see as the continuing erosion of ATI in the federal government.

For example, the Federal Accountability Act of 2006 amended the ATI Act to cover 70 new institutions. But most of these were coupled with exclusions or exemptions.

Virtually unnoticed was the rapid increase in “paramountcy” provisions in other acts, which limit or override the ATI Act.

Perhaps the most glaring omission from the Act is Parliament itself.

I think until the recent Senate expenses controversy most Canadians believed that Parliament was covered by the Access to Information Act.

I, and previous commissioners, have called for the inclusion of Parliament and the administration of courts before the recent Senate revelations.

Let me be clear.

Even if the ATI Act did apply to Parliament, certain information would still not be available to the public — parliamentary privilege must be protected and preserved.

But what would change?

First, documents that substantiate expenses of parliamentarians would be available.

Second, decisions on disclosure or non-disclosure of information could be reviewed independently.

Third, there would be a deterrent factor.

Before I move to some proposed remedies, I would like to highlight one more current issue —the increasing use of smart phones with PIN to PIN features.

Instant messages represent a challenge for access to information, since messages do not generally go through a department’s host telecommunications carrier’s networks, bypassing the department’s corporate server.

Further, on a Blackberry, for example, after 30 days, messages usually disappear.

There is no legal obligation to document under the Act — only policies requiring public servants to record information of business value.

Unless a conscious effort is made to record that information elsewhere, the record could be lost forever.

We are beginning to see disturbing trends to confirm this observation.

So far in 2013, there has been a 34 per cent increase in the number of refusal complaints where a department has responded “no record exists,” up from 19 per centin fiscal year 2011-12.

Modernizing the ATI Act and Other Remedies

The past 30 years has seen fundamental changes in government information.

A year ago on Right to Know Day, I initiated an Open Dialogue process to solicit ideas on reforming the Act.

Later this year, I will be bringing forth a number of recommendations. I am looking forward to hearing the panel this afternoon on standards that Canadian access to information laws should have.

Here are a few potential recommendations.

  • The Information Commissioner of Canada should have order-making power. Right now, I can only try to influence departments’ decisions on disclosure through discussion or by referring the matter to the Federal Court.
  • And by the way, in terms of oversight, since we discussed it this morning, it must apply to all government decisions on disclosure, including cabinet confidences.
  • There should be stronger incentives and/or penalties in the Act to ensure timeliness of disclosures.
  • Current exemptions in the Act should be reviewed with a view to increased disclosure. Open government is limited by legal constraints. The legal constraints in the Act are such that they do not generate maximum disclosure. In this regard, we will hear this afternoon from our international experts. In reforming our legislation we should be informed by international comparatives - such as the work done by the Centre for Law and Democracy, but also by international guidance, such as that found in the recently released Tshwane Principles in matters of national security.
  • The duty to record should be a legislated obligation — especially in light of new technologies.
  • As discussed earlier, the Act should be extended to cover Parliament, ministers’ offices, and courts administration.
  • And there should be mandatory, periodic reviews of the Act to ensure it keeps up to date and to promote public discussion.
  • In this regard, the Office of the Information Commissioner should have an education mandate, especially for the public.

Canadians are using ATI more — but they should be using it a lot more.

Right to Know Week is an important tool for increasing public awareness.

The Need for ATI Champions

We have a “blue ribbon” group here today who understands the importance of access to information.

I need your support in championing the cause.

I need your help to convince governments to respect their obligations under the current legislation — and to introduce new legislation to keep up with today’s information reality.

We need to nurture a culture of openness and disclosure in Canada — not secrecy.

We need to ensure accountability wherever taxpayers’ money is being used.

The right to know should not be confined to a special day or week.

The right to know is a fundamental principle of democracy that should be observed and respected 24 hours a day, 365 days a year.

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