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The Access Act Moving Forward: A Commissioner’s Perspective
John Reid, Information Commissioner of Canada
September 8, 2005
I am very pleased to be speaking to you today and to give you my take on the state of our Access to Information Act. I referred to it as "our" Access to Information Act on purpose because I think it is essential that we, as citizens, journalists, lawyers and ordinary people remember that it is our Act. It is not the government’s Act; it is not the bureaucrats’ Act; it is not the Cabinet’s Act and it is not the Prime Minister’s Act.
This Act was Parliament’s gift of power to each and every citizen and person in Canada and it is, as the courts have called it, a "cornerstone of our democracy." If it is going to be changed, and everyone agrees that it should be changed, then it must be changed in a way that makes governments more accountable and citizens more informed. Furthermore, the very process of changing the Act must be done in broad daylight, in full view of everyone, and not by consultants, bureaucrats and ministers behind closed doors.
This is a crucial time in our democracy and for our democratic institutions, the Access to Information Act being one of those institutions. It has become easier and easier, each and every month since September 11, 2001, to justify more and more secrecy in the name of security, as well as to justify more and more intrusion into personal privacy. Already the trump card of security has been played against the Access to Information Act and, in his Framework Paper, the Minister of Justice seems willing to play it again. Therefore, it is essential that we go into the process of renewing our Act with our eyes wide open and our "BS" detector on high alert.
How did we get to where we are today? The Access to Information Act was proclaimed in force on July 1, 1983. Since that time, despite many calls for reform, the Act has remained essentially the same. One amendment worthy of note is found as section 67.1 in the Act, which makes it an offence to destroy, mutilate or alter a record; to falsify a record or make a false record; to conceal a record or to direct, propose, counsel or cause any person in any manner to do any of those things if it was done with the intent to deny a right of access under the Act. This provision became part of the law by way of a private members’ bill put forward by a Liberal backbencher, Colleen Beaumier.
Another backbench member of Parliament who consistently and persistently urged reform of the Act was former Liberal M.P. John Bryden. His Private Member’s bill, Bill C-462, was given first reading on October 28, 2003, and received unanimous support at second reading – only to die on the order paper before the last election. When Parliament sat again after the election, without Mr. Bryden, Pat Martin introduced another Private Member’s bill, Bill C-201, which reintroduced Mr. Bryden’s bill which had died. Mr. Martin’s bill was eventually withdrawn from priority by him after an agreement with the Minister of Justice that, in exchange for the withdrawal of the bill from priority, the government would introduce its own bill to reform the Access to Information Act.
That agreement has yet to be honoured by the government. On April, 2005, the Minister of Justice appeared before the House Standing Committee on Access, Privacy and Ethics, and announced that, instead of tabling a bill, he had decided to issue a "discussion paper" – A Comprehensive Framework for Access to Information Reform. This was a bitter disappointment to Pat Martin, who had only withdrawn his bill, on the understanding that a government bill would be forthcoming. Especially disappointing was the fact that the framework paper appears to be guided by the Delagrave Task Force report, which recommends additional limits to Access, rather than by the Bryden/Martin Bill.
The Standing Committee then took the unusual step of asking my office to produce a draft reform bill for its consideration, a request which I agreed to honour. Since that development, the Minister of Justice announced that he, too, would produce a draft bill this Fall.
At the same time, my appointment was ending – on June 30, 2005 – and my request to have it renewed for a further year, so that I might see the reform of this Act through, was being stalled despite the overwhelming vote of the House urging the government to renew my term for the year. At the eleventh hour, June 30th, I was given a three-month renewal, later extended to nine months, and the government announced that it was appointing an "eminent person" to advise the government on the efficacy of joining the offices of the Information and Privacy Commissioners.
I have respect for, and confidence in, Dr. Gérard La Forest, but it seems to me to be an odd time to be taking the focus away from the reform of the Act. It might cause a cynical person to believe that the government has thrown the "merger" idea on the table now, merely to justify stalling the reform process until after the next election.
Before I share with you the main items on my "wish list" for reform, I want to take a few moments to address this issue of merging the offices of the Privacy and Information commissioners under a single commissioner.
In 2003, as Parliament agonized over what to do with George Radwanski and how to revitalize a demoralized Privacy Commissioner’s Office, I issued a paper proposing that subsection 55(1) of the Privacy Act be triggered until the end of my term. That provision authorizes the appointment of the Information Commissioner as the Privacy Commissioner. I argued then for taking the single-commissioner approach at the federal level, for the short period until the end of my term, at which time some actual experience with the single-commissioner model could be assessed and the immediate Radwanski problem could be addressed.
When you issue a public paper, you have to be prepared for the reaction to it. I received, in response to my paper of October 2003, a great deal of thoughtful feedback from members of Parliament, members of the media, academics, access requesters, the interim Privacy Commissioner, and from my provincial colleagues. Almost everyone disagreed with me. They made a strong case for keeping two commissioners and, thereby, ensuring a vigorous public debate about resolving conflicts between privacy and openness rather than incestuous, in-house discussion leading to a single-commissioner position.
Those who commented on my proposal, reminded me that the leaders and citizens of Canada have been well-served by having separate commissioners fighting and advocating for the values of openness and privacy. We have, as a result, a healthier balance between these two values in Canada than does the United States, where freedom of information takes pride of place, or than does Great Britain, where privacy holds sway.
I have been impressed by these arguments; I have recanted; I no longer advocate the single-commissioner model. I accept that there are few shortcomings in the dual-commissioner model and I now admit that the dual-commissioner model is far less open to abuse than would be the single-commissioner model. In the single-commissioner model, it is certainly possible that one value – openness or privacy – would get preferential treatment. In the single-commissioner model, that which is most healthy in a democracy – public debate – gives way to internal, bureaucratic discussion and compromise.
And so, I tell you here, as I have recently told the government, through Dr. La Forest, that I no longer support or advocate the single-commissioner model. I believe that the public interest would not be served by moving to the single-commissioner model. Enough said! Now, I would like to get back to the business of real reform of the Access to Information Act.
To be worthy of the term "reform" any proposals to amend the ATIA must have the following features:
- All exemptions should contain an injury test and be discretionary. As well, all exemptions should be subject to a public interest override. In this way, Parliament would send the clear message that this is an openness law not a secrecy code and that the default position is disclosure.
- Public officials should be required to document their decisions, actions, considerations and deliberations. This law, this right of access, means nothing if public officials don’t keep appropriate records and conduct governance in an oral culture.
- The last vestiges of unreviewable government secrecy – i.e. cabinet confidences – should be brought within the coverage of the law and the review jurisdiction of the Commissioner, by being made an exemption. Cabinet confidentiality risks being too broadly, and too self-servingly, applied by governments when it is free from independent oversight. We have had considerable experience in this.
- The coverage of the Access law must be made comprehensive to all the mechanisms of government through which public funds are spent or public functions discharged. Of course, I refer here to all Crown Corporations, Foundations, Agents of Parliament as well as Ministers’ offices and the PMO. The right to know is at profound risk when governments have the discretion to decide which entities and, hence, which records, will be subject to the right of access and which will not. The very purpose of the Access to Information Act was to remove the caprice from decisions about disclosure of government records; now we must remove the caprice from decisions about which entities will be subject to the Act.
- Connected with this notion, that the coverage of the Act should be comprehensive, is the notion that the Act should be a complete code setting out the openness/secrecy balance. No longer should we permit secrecy provisions in other statutes to be mandatory, in perpetuity, without meeting any of the tests for secrecy in the Act’s substantive exemptions. Section 24 of the Access to Information Act, which sets out this open-ended, mandatory, class exemption, should be abolished.
And there are a host of other important changes such as:
setting out the roles and responsibilities of Access coordinators,
establishing incentives for respecting response deadlines, and
expanding the mandate of the Information Commissioner
The features I have outlined constitute the general framework of the reforms I will be tabling in Bill form with the Standing Committee on Access to Information, Privacy and Ethics at the end of this month. In many respects, they echo recommendations made by the CNA.
The CNA deserves high praise for its careful attention to the state of health in Canada of the right to know. The right – including the role of my office – is under serious threat and I urge you to continue to be vigilant and active in the coming months to hold the government’s feet to the fire when it comes to improving the openness of government.
There are others, too, who I am urging to do battle for a stronger Access to Information Act. One of these is Mr. Justice Gomery. As you know, the second element of Justice Gomery’s mandate is to make recommendations to prevent sponsorship and advertising mismanagement in future and to clarify the respective accountabilities and responsibilities of ministers and public servants. In his call for public input, Justice Gomery identifies the Access to Information Act as one of the accountability and transparency mechanisms about which he will make recommendations.
As have many of you, I have been intrigued by what I have heard from the Gomery Commission witnesses so far. We have heard evidence about deliberate attempts to avoid keeping a paper trail of decisions, recommendations and actions.
We have heard evidence about the direct involvement of PMO and ministers’ offices in the management of government programs.
We have heard evidence about the subtle, and not so subtle, ways elected officials have of ensuring that program outcomes are driven by partisan preoccupation rather than public interest preoccupations.
We have seen how access requests are stonewalled and ignored in order to save ministers and departments from embarrassment. And, most troubling of all, we have seen evidence that, in times of perceived national unity crisis, governments may feel that the obligation to be law abiding is optional and that ends come to justify any means.
Now these glimpses into how governance in Canada worked at a particular time and in a particular program are profound reminders that the greater the transparency of governance the smaller the risk or opportunity for abuse of power.
For that reason I urge Justice Gomery to look carefully at my blueprint for reform of the Access to Information Act and to support my calls of a requirement to keep records, making it clear that ministers’ offices and the PMO are subject to the right of access, building in incentives for timely responses, clarifying the roles and responsibilities of access coordinators and expanding the coverage of the Act to capture all public functions and expenditures of public funds.
If it has not already done so, I urge the CNA to make its views in this regard known to Justice Gomery. I urge your members to do all in their power to keep this matter of accountability through transparency on the front burner during the election campaign which some would say is already underway.
I will be forever grateful, humble and proud of the opportunity I have had to serve Canada as its Information Commissioner. Not only do I have a special opportunity to help enrich the quality of our democracy, I get an up close look at the hard and effective work others are doing towards that same end. At the top of the list in this category, I put the CNA. Kudos to its member publishers and to Canadian newspaper editors, columnists and reporters who, every day, using the Access to Information Act and otherwise, help make citizens more informed and governments more accountable.