Speaking Notes for Suzanne Legault, Information Commissioner of Canada
Press Conference for the release of the report, Striking the Right Balance for Transparency

Tuesday, March 31, 2015

Check against Delivery

Today, I am pleased to release my report on the modernization of the Access to Information Act.

Access to information held by government is critical to the functioning of a modern democracy.

This information provides citizens with the ability to participate meaningfully in the democratic process.

It ensures that citizens can hold politicians and bureaucrats to account for their actions and decisions.

However, in reality, an Act that was intended to shine a light on the decisions and operations of government has become a shield against transparency.

An Act intended to increase accountability and citizen engagement has enabled a culture of delay.

Clearly there is a need for change.

A key component of an effective and open system is a modern access to information law that maximizes timely disclosure of government information in formats that are readily accessible to the public.

The report provides an objective and unique perspective of all parts of the access to information process.

It is based on my experience, cumulated over 10,000 completed complaints.

It takes into consideration the work of my predecessors and comments received from a wide range of stakeholders.

It is also inspired by the highest standards and best practices for access to information legislation, contained in laws of other jurisdictions, model laws and guides, as well as high-level reports on access reform.

The Act was conceived more than 30 years ago when most information was paper-based and the Internet was still under development.

In the context of 2015, with new technologies, new demands and new expectations of citizens, it is my view that the current Act does not strike the right balance between Canadian’s right to know and the legitimate protection of information that, if released, could potentially cause harm to governments, third parties or individuals.

I am proposing 85 recommendations that will, if implemented, recalibrate this balance.

I will focus this morning on four key aspects of the report that are essential for creating a culture of openness.

I  Extending the Coverage of the Act.

First, many Canadians were surprised to discover over the last few years that the Act does not apply to Parliament, ministers’ offices, nor the Prime Minister’s Office.

Parliament, for example, receives over $500 million of public funds but it is not subject to the Act. I am recommending extending coverage of the Act to include these and other institutions that receive government funding, are controlled by the Government of Canada, or that perform a public function.

II Timeliness

Second, my predecessors and I have often said that information delayed is information denied. We have repeatedly referred to the need for stricter timelines in the access to information process.

The Federal Court of Appeal stated earlier this month that “timely access is a constituent part of the right of access.” Yet, in a world where information travels at the rate of milliseconds, institutions respond to requests in months or years.

My recommendations are designed to change a number of provisions to reverse the culture of delay. For example, I am recommending limiting time extensions to what is strictly necessary based on a rigorous, logical and supportable calculation, up to a maximum of 60 days. Longer extensions would require the permission of my office.

III Maximizing the Disclosure

Third, my recommendations are intended to maximize disclosure of government information. Because the current Act contains many broad exclusions and exemptions, it has become a menu for how to deny disclosure.

I am recommending that all exclusions in the current Act be repealed, to be replaced by exemptions, where necessary. This would allow an independent review of all records, including Cabinet documents.

I am also recommending changes to a number of exemptions to protect only what is strictly necessary, to prevent injury to public or private interests.

Finally, I am also recommending including in the Act a general public interest override. This will ensure that the public interest in disclosure is taken into account while considering whether to apply any of the exemptions within the Act.

IV Strengthening Oversight

Fourth, I am proposing a set of recommendations dealing with the powers of the Information Commissioner in order to strengthen oversight of the access to information regime.

As the Act currently stands, once a complaint is made to my Office, I can only make recommendations to a government institution. These are not binding.

I am recommending that the Information Commissioner be given order-making powers.

In this model, a requester could appeal an institution’s decision to my office.

The first step would be mediation.

If that failed, the Commissioner would then adjudicate the case and issue an order disposing of the matters raised in the appeal.

An order-making model is, in my view, the most efficient for maximum and timely disclosure.

x x x

Many of these recommendations are long overdue.

Having a modern access law would assist Canadians in exercising their right to know.

It would facilitate the creation of a government culture that is open by default.

And, it would re-establish Canada’s position as a world leader in access to information.

x x x

I will be pleased to take your questions.