Rights, Resilience and Results
Speaking Notes for Suzanne Legault, Information Commissioner
2016 BC Information Summit
BC Freedom of Information and Privacy Association
September 22, 2016
Check against delivery.
Thank you Michael.
It is an honour to be here today and to participate in this year’s Information Summit.
I am particularly happy to share this time with you on the eve of Right to Know Week, which this year is celebrating the 250th anniversary of the first access to information law that was enacted in Sweden and Finland.
As I enter the last leg of my marathon as Canada’s fifth Information Commissioner, this summit is a great opportunity to thank the Freedom of Information and Privacy Association, and this vibrant BC community of transparency advocates, for your continued hard work.
As Alasdair Roberts commented in a paper submitted to my office a few years ago, one of the key components of a healthy access to information regime must include a well-organized constituency of non-governmental stakeholders who identify and communicate the weaknesses in the law, monitor government backsliding on providing access, and recommend new innovations in law and best practices from other jurisdictions.
BC FIPA, and many others in this room, have fulfilled this role for many years, both at the provincial and federal level. Last year, FIPA participated in the online consultation by the federal government on reform proposals, appeared before parliamentary committees at the provincial and federal level, intervened at the Supreme Court of Canada, and issued a joint statement during the 2015 federal election calling on all political parties to reform the Access to Information Act.
I also want to take this opportunity to congratulate your former Commissioner and my esteemed colleague, Elizabeth Denham, and applaud the tremendous work she has accomplished here in BC. Our thoughts are with her as she moves to the world stage and takes on her new challenging role as the UK’s Information Commissioner.
For all of your contributions over the years, please accept my sincere thanks. Your work, your insights and your advocacy have made a tremendous difference.
The past year
The theme of your conference this year is: From Trickle to Tide: Preparing for a Wave of Transparency.
In recent months we have certainly seen a sea change from previous years.
In October 2015, we saw the election of a new federal government that campaigned on a platform of openness and transparency.
Shortly thereafter, the new government released, for the first time at the federal level, the mandate letters of all of the newly-appointed ministers.
The Minister of Justice and the President of the Treasury Board received clear direction from the Prime Minister. They are to review the Access to Information Act to ensure that the application of the Act is extended to ministers’ offices, the administration of Parliament and the courts, and to provide my office with the power to issue orders.
In March 2016, Minister Brison announced that reform of the Act would follow a two-phased process. The first phase would seek to introduce a bill to Parliament consistent with the mandate letters, with a few minor additions. The second phase would begin in 2018 and involve a more comprehensive review.
In May, the Minister announced a new directive eliminating all fees except for the initial $5 application fee.
In the spring of this year, the House of Commons Standing Committee on Access to Information, Privacy and Ethics undertook a comprehensive review of the Act. In June, the Committee issued its report on how to modernize the Act and it included 32 recommendations. It urged the government to move forward with an important series of recommendations in the first phase including:
- Extending the scope of the Act
- Establishing a legal duty to document with appropriate sanctions for non-compliance
- Allowing institutions to refuse to process requests that are frivolous and vexatious
- Providing information to requesters in an open, reusable and accessible format
- Implementing time limited extensions
- Abolishing the $5 fee – but reinstate fees for voluminous requests
- Replacing all exclusions with exemptions
- Implementing a public interest override with a non-exhaustive list of criteria
- Amending the exemption for advice and recommendations to add an injury test and narrow its scope
- Amending the cabinet confidence exclusion so that it focuses on the substance of deliberations
- Giving the commissioner order-making power, with any ministerial veto limited to matters of national security and subject to judicial review
The new government published its third action plan as part of the Open government partnership, and it included, as one of its commitments, the modernization of the Access to Information Act.
And last, but not least, my office finally received additional funding for this fiscal year to tackle the large inventory of complaints. So far, we have completed 43 percent more investigations this year than we did last year. (894 compared to 507).
I can also attest, without reservation, that there has been a complete change in terms of collaboration, respect and willingness to resolve issues.
These are significant events and they deserve recognition.
Those of us whose mission it is to protect and promote access to information rights know that our diligent work and our resilience in the face of setbacks has led us here, and it is our continued focus that will ensure results. Our sustained efforts over the years have been increasing, and what was once a trickle is now building into a swell.
In 2008, the federal government discontinued CAIRS, the coordination of access to information requests system. Many stakeholders joined me in recommending that the federal government keep CAIRS operational until it was ready to replace it with a new, updated system. Our recommendations were not accepted. Yet, a few years later, the publication of access requests in a searchable database became one of the first deliverables in the open government initiative.
I started advocating for an Open Government strategy in 2009. You will remember that at the time, the US, the UK and Australia were leading the way internationally. In Canada, the municipalities were the ones out front. I appeared before the parliamentary committee in 2010 and outlined the broad strokes of what we then called a “Made in Canada Strategy” for open government. That same year, all information and privacy commissioners across the country signed a joint resolution urging the federal government to adopt an open government agenda. The federal and most of our provincial governments have now adopted one. Our joint letter to the federal government was unequivocal - a modern Access to Information Act is the most important pillar of an open government strategy. It took three action plans, but the commitment we asked for is finally included.
Across jurisdictions we have worked tirelessly to improve the timeliness of responses to requests. Report cards conducted by commissioners and other stakeholder groups have exposed the blatant abuses of this fundamental component of our access rights.
Here again, at the federal level at least, we have seen the fruits of our labour. In early 2000, which is our best recorded performance, our response rate was 69 percent of requests responded to within 30 days. We had a steady decline of this performance year after year, until we reached 55 percent in 2011-2012. Delays have been the Achilles heel of the federal access to information system. This performance, however, has been on the rise since then and the most recent statistics show it has reached 65 percent in 2013-2014.
Our strong and sustained collective advocacy on this matter has indeed improved the performance of our federal institutions.
Case law has also been a significant driver of improvements to the system in the last few years. Even when decisions result in an erosion of information rights, they often lead to amendments or to proposals for amendments. At other times, they lead to immediate results for information rights.
The Prime Minister’s agenda is a case in point. In Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25, the Court established that the Prime Minister’s office and ministers’ offices are not part of the government institutions for which they are responsible, with the caveat that some information may be departmental and hence accessible. This case has led to many proposals for reform to cover ministers’ offices and is now part of the proposed amendments for the first phase of reform.
Last year, in a precedent setting decision of the Federal Court of Appeal, Canada (Information Commissioner) v. Canada (Minister of National Defence), 2015 FCA 56 the extension provision of the Act was finally interpreted. The concept of a reasonable extension was clarified by the court and has led to much discipline among institutions. The court clearly articulated that an unreasonable extension is invalid and is tantamount to a refusal of access. This has instilled much discipline in the taking of extensions. My office’s investigation of these files has been significantly simplified.
As well, in March 2015, in Canada (Information Commissioner) v. Canada (Attorney General), 2015 FC 405 the Federal Court agreed with our position and ruled that the federal government could no longer charge fees for searching and preparing electronic records under the current regulations. This, coupled with sustained advocacy over the years, clearly paved the way to the removal of fees at the federal level.
In March of 2015, we tabled a special report to Parliament entitled Striking the Right Balance for Transparency containing 85 recommendations to modernize the Access to Information Act. This report formed the basis of the study of the House of Commons Standing Committee.
Our resilience was probably tested most last year in the long gun registry case.
The May 2015 budget bill included provisions to erase retroactively the application of the Access to Information Act. It erased all administrative, civil, or criminal liability arising from any action, from any person, under the Act, back to the time when the Ending the Long Gun Registry Act was first tabled in Parliament. This was done at a time when we had referred evidence to the Attorney General of Canada of the possible commission of an offence under the Act. The evidence pointed to the destruction of records in the registry while an access to information request was validly made.
We quickly issued a Special Report to Parliament, filed an application for judicial review in the Federal Court (Information Commissioner of Canada v. Minister of Public Safety and Emergency Preparedness, T-785-15), and initiated a constitutional challenge in the Ontario Superior Court (Information Commissioner of Canada and Bill Clennett v. Attorney General of Canada et al., 15-64739). Meanwhile, the Federal Court ordered the production of the remaining records to be sealed and kept at the Federal court. The Ontario Provincial Police did not investigate because, as they told us, there was no longer a criminal offence to investigate.
These litigation cases are being held in abeyance. Negotiations with the current government point to a resolution in the near future.
Before coming here this week, Stanley Tromp sent me his very good paper on the duty to document. In it, he referenced George Orwell’s 1984. As I stated several times in relation to this long gun registry case, the government at the time said that it was merely fixing a loophole. I testified before the parliamentary committee that it was creating a black hole. In our opinion, the federal government attempted to erase this history into a memory hole of the records department of the ministry of truth. Except this was not a work of fiction on some dystopic world. This was our Canada in 2015.
These have been some of our battles. Our resilience has kept us going and has helped us achieve results for Canadians.
What lies ahead this year?
First thing to watch for is the federal government’s response to the committee which is expected to be tabled during the week of October 17. This will pave the way for the first phase of amendments to the Act.
Some important cases are also making their way through the courts.
First, the Fontaine et al. v. Canada (A.G.) et al. (SCC 37037) litigation.
This case may have repercussions on how the missing and murdered indigenous women’s inquiry is conducted. It will also impact some of our current investigations.
On August 6, 2014, Justice Paul Perell, in his role in supervising the administration of the Indian Residential Schools Settlement Agreement (IRSSA) determined that documents and, in particular, narratives of the abuse suffered by residential school survivors used in the adjudication of individual claims under the Independent Assessment Process (IAP) established by the IRSSA, were not government records subject to federal legislation, including the Library and Archives of Canada Act, the Privacy Act or the Access to Information Act.
This matter was appealed. The Court of Appeal essentially agreed with Justice Perell’s decision.
On May 31, 2016, the Attorney General of Canada filed an application for leave to appeal to the Supreme Court of Canada.
Another important litigation file is the Information and Privacy Commissioner of Alberta v. The Board of Governors of the University of Calgary (SCC 36460).
As you know, in this case, the University of Alberta challenged the Commissioner’s ability to review records over which a claim of solicitor client privilege had been made. The lower court upheld the Commissioner’s ability to review such records and order their production. However, the Alberta Court of Appeal thereafter found that the Commissioner’s empowering provision was not sufficiently explicit to include records over which solicitor-client privilege was claimed, and therefore quashed the notice to produce.
The Alberta Commissioner applied for, and was granted leave to appeal at the Supreme Court of Canada. The appeal was heard by the Supreme Court of Canada on April 1, 2016 and the matter is under reserve. All commissioners are intervening in this case.
We know that this exemption is regularly over applied. Without the ability to review the records, this exemption could become the next major loophole in our access laws.
Another important and interesting case is Defence Construction v. UCANU (A-414-15) which will be heard by the Federal Court of Appeal.
Defence Construction wanted to raise an additional mandatory exemption under section 24 of the Act that incorporates by reference section 30 of the Defence Production Act (DPA). Section 30 of the DPA mandates that no information with respect to an individual business that has been obtained under or by virtue of the DPA, shall be disclosed without the consent of the person carrying on that business.
If validly raised, the exemption would serve to withhold all of the records at issue.
The Federal Court concluded that DCC was not entitled to rely on the additional statutory exemption to withhold the remaining records.
On September 23, 2015, the government filed its Notice of Appeal before the Federal Court of Appeal. On December 21, 2015, the Federal Court of Appeal granted the Commissioner intervener status in the proceedings. The sole issue on appeal is whether the judge erred in refusing to allow DCC to rely on the additional mandatory exemption.
The Court of Appeal will assess whether an institution should be permitted to raise additional mandatory exemptions post-investigation.
The case will be heard in Ottawa on November 1, 2016 before the Federal Court of Appeal.
It is long established in Canada that access to information is a quasi-constitutional right.
The Supreme Court of Canada, in Ontario (Public Safety and Security) v. Criminal Lawyers' Association, 2010 SCC 23 concluded that, although the protection guaranteed by paragraph 2(b) refers to freedom of expression, access to information "is a derivative right which may arise where it is a necessary precondition of meaningful expression on the functioning of government". This right exists independently from, and in addition to, the rights afforded by access to information regimes.
Canadians are becoming more interested in knowing what their government is doing and making access requests for information. There is a shift in the system with an increase in requests coming from the public. We are seeing the same at the complaint level. The number of requests has doubled in the last few years.
Internationally, access to information rights are considered to be fundamental human rights and are constitutionally entrenched. UNESCO officially declared that September 28th is the International Day for universal access to information.
Robust access to information is considered to increase competitiveness, innovation and efficiency by facilitating the flow of information between government, industry and citizens.
I know that I preach to the converted.
It is crucial to remember that this is the foundation. It is the backdrop against which we must measure the adequacy of our access to information laws, and our government’s performance in administering it.
So many things have changed since our ATI laws were first developed. We have new technologies, from paper based to main frames, to SMS messaging and cloud computing, and more.
We have new government structures, from centralized governments to special operating agencies, to quasi commercial entities, to semi privatized crown corporations.
We have new processes with centralized operations such as Shared Services Canada. And we have a new generation of information consumers.
Our current laws fail to protect our information rights, and they do not strike the right balance between the people’s right to know and the government’s need to protect information.
There are a number of important questions that need to be answered. In this new age of deliverology, will our governments deliver on their promises? Will we see concrete reforms that actually address the well identified shortcomings? Are we already seeing some backsliding with delays in putting forward concrete reform proposals?
We have seen some significant developments in these past few months, but the real reforms have yet to be presented to Parliament or before the BC legislature.
The real test lies ahead.
Our work has just begun. We need to hold our governments to account and insist that they properly protect our information rights.
Otherwise, we risk going back to square one. Canadians want and deserve more.