In 2013, Canada will celebrate the 30th anniversary of the coming into force of the federal Access to Information Act and the creation of the Office of the Information Commissioner of Canada (OIC).
The Act, at the time of its Royal Assent, was characterized as groundbreaking. Canada was one of a handful of countries around the world to enact freedom of information legislation. It was also one of the first to enact such a law in a Westminster model of government.
The adoption of the Act was the result of decades of discussion and attempts, going back to the 1960s, when a private member’s bill seeking to recognize the public’s right to access government records was introduced in Parliament. This bill was never adopted, but it provided the catalyst for further passionate debates that ultimately led to the adoption of the Access to Information Act almost two decades later.
The legislation passed with great promise. As in other pioneering jurisdictions, Canada’s Act was premised on the notion that transparency would make government more accountable and responsive to the needs of citizens. The Honourable Francis Fox, the then-Minister sponsoring the bill, said that the Act will make changes in our parliamentary institutions, changes which will have long-term consequences for our democracy.
The Act provides a legal and policy framework for:
- confirming the right of citizens to access government information;
- establishing a presumption in favour of disclosure;
- defining limitations or exceptions to these rights;
- imposing a duty on government to process requests in a timely, responsible and complete fashion; and
- clarifying the recourse available to individuals and organizations when they believe their information rights have not been respected.
These rights were further entrenched in our democratic institutions by the Supreme Court of Canada when it confirmed the quasi-constitutional nature of the Act. Mr. Justice Laforest stated that: “Rights to state-held information are designed to improve the workings of government; to make it more effective, responsive and accountable”
Flash-forward three decades and it is clear that the early architects of access to information laws were onto something. The Act has been characterized as an essential component of a vibrant democratic society. It allows citizens to participate meaningfully in the democratic process, to hold government to account and exercise their right to know. Access to information underpins many of our most cherished rights and freedoms such as the freedom of expression, the freedom of the press and the right to vote.
As the ubiquity and sophistication of access to information laws has grown, so too has awareness of its benefits. While the original foundation for access to information laws remains intact—the right to information promotes accountability and keeps governments honest—a number of important new narratives have emerged and gained traction.
For example, most international human rights bodies now characterize access to information as a fundamental human right. Business associations often stress that robust access to information laws can enhance competitiveness, efficiency and innovation by facilitating the flow of information between government and industry. A growing number of advocates for participative democracy argue that effective access to information laws are essential because they empower citizens to influence the activities of public bodies for the public good.
In the debates leading up to the adoption of the Act, not all thought that the Act was enacted on strong foundations. Many deemed it flawed because:
- its coverage was limited to the executive branch;
- it included a long list of exemptions, many mandatory and class based, without an injury test;
- it required those making information requests to pay fees to access public information;
- it gave limited importance to public interest in disclosure;
- it excluded Cabinet Confidences from its coverage; and
- it did not have a role for the Commissioner in education and research.
Calls for reform came almost immediately and continued persistently ever since. While there has been much thoughtful discussion and debate, more often than not, changes to our access laws have been driven by other factors.
For example, the 1997 Krever Commission into the tainted blood scandal found that certain government documents had been deliberately destroyed in violation of the public’s right to access. That same year, the Commission of Inquiry into the Deployment of Canadian Forces in Somalia, confirmed that essential information requested by a journalists had been held back or falsified. The findings of these two inquiries led to the addition of criminal sanctions under the Act.
In 2005, the Gomery Commission found that senior officials and Ministers failed to respect the spirit of access to information, were late responding to information request and failed to document decisions. The Federal Accountability Act was part of the federal government’s response to these findings. It amended the Access to Information Act by increasing the number of institutions subject to the Act and by introducing a legislated duty to assist applicants. However, it also added a number of institution-specific exemptions and exclusions.
Over the past several years, the annual reports of the current and previous Information Commissioners documented a number of ongoing challenges with the Act. These investigations highlight some of the deficiencies in the law. It is therefore not surprising that each Information Commissioner, in the 30-year history of the Office, has put forward for consideration legislative reform proposals.
Many recurring issues have been raised by information commissioners in their annual reports and special reports. A sample of the top issues are:
- Delays in the release of records by federal institutions:
- While the Act requires federal institutions to provide information within 30 days, seeking exceptions to this requirement has become the norm, rather than the exception;
- There are no substantive consequences for federal institutions that fail to provide requested information within the prescribed timelines;
- Fees used as barriers to access requests;
- Limitations on the application of the Act:
- Exemptions such as international affairs, national security and advice to government are interpreted broadly;
- The need to include a harm or prejudice test into more exemptions;
- Confidentiality clauses in other laws sometimes restrict the coverage of the Act;
- Need to include a public interest override into more exemptions;
- Exclusion of Cabinet confidences;
- Information management:
- Improper record-keeping practices;
- No legislated duty to document decision-making;
- Resources shortfalls:
- Some federal institutions do not invest sufficient resources to meet their access to information responsibilities;
- Cultural change: institutional resistance to meeting the letter and spirit of the Act is a recurring problem in some federal institutions;
- Delays in investigating complaints by the OIC.
It has become apparent that the once state of the art legislation enacted by Canada in the 1980s has fallen behind the legislative innovations at both the provincial, territorial and international levels. In the absence of any legislatively mandated review, the law has remained static; most calls for reform have not borne fruit. The Act is a quasi-constitutional piece of legislation that confers duties on government and ascribes rights to citizens. Legislation of this nature, that expresses the core values of citizens, and that is quasi-constitutional in nature, cannot remain static; it must continue to evolve.
The last two significant calls for reforms came from the last two former Information Commissioners, Mr. John Reid and Mr. Robert Marleau.
Commissioner Reid, at the request of the Standing Committee on Access to Information, Privacy and Ethics (ETHI), tabled a draft reform bill called Open Government Act in Committee in October 2005. The proposed bill rewrote the Access to Information Act, including changing its name. The proposal expanded the number of institutions to be covered by the Act; it reduced the scope of limitations permitted by the Act and it expanded the powers of oversight by the Information Commissioner. In November 2005, ETHI recommended “that the Justice Minister consider the advisability of introducing before the end of the Session legislation in the House of Commons based on the provisions of the ‘Open Government Act’ presented by Information Commissioner John Reid, with the assistance of the Legislative Counsel of the House of Commons.” Only a few of the proposals contained in the proposed “Open Government Act” were adopted in 2006 under the Federal Accountability Act.
In March 2009, Commissioner Marleau identified 12 recommendations that were urgently needed to modernize the access to information regime and catch up with more progressive regimes both nationally and internationally. The changes addressed the general themes of the right of access to all, the coverage of the Act, the compliance model, the mandates of public education, research and advice for the Information Commissioner and timeliness. Although ETHI, in its June 2009 Report, agreed to most recommendations, none were subsequently legislated.
In 2012, in response to the Government consultation on its Open Government Partnership (OGP), all Information and Privacy Commissioners across Canada recommended: “That the Government of Canada commit to increasing public integrity by modernizing the federal Access to Information Act”. They wrote that the OGP offers an excellent opportunity for the Government of Canada to amend the Act and align it with current government processes and progressive national and international norms. The Information and Privacy Commissioners recommend that the government conduct a comprehensive review of the legislation with the goal of modernizing it and re-establishing Canada’s leadership position.
A sound and progressive legislative framework is a key component of any move towards government 2.0, Open Government or a participation in the OGP.
In this context, the Centre for Law and Democracy’s Right to Information Index ranks Canada in 55th position out of 92 countries.
Canada’s Access to Information Act, while cutting edge in 1983, has not been significantly updated since then, and reflects outdated norms. Canada’s lax timelines, imposition of access fees, lack of proper public interest override, and blanket exemptions for certain political offices all contravene international standards for the right of access.
Today, rapidly evolving technologies and recent developments at the international level pose a new set of questions and parameters. For instance, new forms of communication, such as pin-to-pin and SMS text messages, among others, create new challenges. The administration and delivery of access requests and records rest on more advanced technological platforms in other countries, such as Mexico. Yet our citizens who function in a digital environment are still being asked to interact with an analogue government.
The explosion of the open government movement on a national and global level has also created opportunities and questions, which the current Act cannot take advantage of or answer. Indeed, over the past 5 years, legislative initiatives and reforms to access laws in other countries have witnessed a change in focus with respect to information laws. Increasingly, proactive disclosure is the norm and information is treated akin to a natural resource, with governments serving as its custodians for the public interest.
Suffice it to say, challenges facing access to information are complex. They require a thoughtful and comprehensive response, not a piecemeal one.