4. Promoting access

The Commissioner works to improve how the Access to Information Act is implemented across the federal government. The Commissioner is also active in Canada and internationally, helping develop, implement and improve access laws.

Balancing open government with access

The Commissioner has been supportive of the government’s activities in the area of open government, including Canada’s joining the international Open Government Partnership (OGP). At the same time, she has stressed that a strong access to information system is a crucial element of any open government plan.

Ensuring complementary approaches

The Office of the Information Commissioner analyzed the types of datasets available through open.canada.ca and compared them to the information sought through access to information requests.

There are clear differences between the two. For example, at the end of June 2015, the top three downloaded datasets were the National Occupational Classification (NOC) 2011 (Statistics Canada), Government of Canada employee contact information (Shared Services Canada) and fuel consumption ratings (Natural Resources Canada).

In contrast, common themes of access requests from January to May 2015 included terrorism and information regarding the Islamic States, the October 22, 2014, shooting on Parliament Hill, lists of briefing notes to ministers and deputy ministers, and climate change.

The differences between the two groups of information speak strongly to the Commissioner’s position that open data and access to information are both essential to optimizing government transparency.

In a September 2014 letter to the President of the Treasury Board, the Commissioner emphasized that the government’s upcoming open government action plan should include a commitment to modernizing the Access to Information Act. In her letter, the Commissioner concurred with the independent expert who reviewed Canada’s progress on implementing its OGP commitments and who noted that “open data is becoming privileged at the expense of other areas of open government and some of the other commitments that we have made in our OGP action plan to the international community and to Canadians.”

In a follow-up letter, the Commissioner made 16 recommendations on the draft plan, released in October 2014. Her recommendations focused on measures to help the government effect a fundamental change in its internal culture to promote the release of information and foster transparency, accountability and citizen engagement.

In addition to modernizing the Act to align with the principle of “open by default” and the most progressive national and international standards, the Commissioner recommended that the government provide more guidance and training on information management to public servants; and establish in the law a comprehensive duty to document, with sanctions for non-compliance. The Commissioner also recommended implementing a legal obligation to systematically declassify government records and having institutions release information in accordance with open government principles. Finally, she recommended that Treasury Board of Canada Secretariat (TBS) ensure adequate resourcing of the access to information function and that TBS take a lead role in recruiting, staffing and retaining much-needed access professionals.

The government released the 2014–2016 action plan in November 2014. It did not include a commitment to modernize the Act, nor did it take into account any of the Commissioner’s other recommendations. The government did commit to expanding the proactive release of information on government activities, programs, policies and services, and to making information easier to find, access and use. However, the Commissioner is of the view that such disclosure cannot replace a robust access to information system (see box, “Ensuring complementary approaches”) nor facilitate the necessary culture change.

Shedding light on decision-making by Cabinet

Self-censoring of requests

Institutions invoked section 69 more than 3,100 times in 2013–2014. This is a 49-percent increase from 2012–2013, which followed a 15-percent jump the previous year.

To expedite the treatment of their requests, requesters asked institutions more than 1,700 times from April 2013 to May 2015 to not process records containing Cabinet confidences.

Cabinet is responsible for setting the policies and priorities of the Government of Canada. In doing so, ministers must be able to discuss issues within Cabinet privately. The need to protect these deliberations is well established under the Westminster system of Parliament and has been recognized by the Supreme Court of Canada.

Under the current law, Cabinet documents, with very few exceptions, are excluded from the Act under section 69. This means that the Commissioner is unable to review any such records as part of her investigations. In addition, and as the Commissioner noted in her 2013–2014 annual report, the process for reviewing records during the processing of access requests to determine whether they contain Cabinet confidences was changed in 2013. It is no longer carried out by an expert group at the Privy Council Office (PCO), but by lawyers at each institution (see “Section 69”). The Commissioner is concerned about the implications of this change on the consistency of the application of section 69 and about the increased use of this provision by institutions.

Throughout 2014–2015, the Commissioner monitored the situation. For the first time, during an investigation into a complaint against Public Safety Canada, PCO refused her request to re-review the records at issue to determine whether section 69 had been properly applied. PCO argued that the institution should carry out this step first to ensure it was fully accountable for its decisions about excluding records before PCO got involved. This lengthened the investigation considerably.

Also in 2014–2015, the Commissioner was able to confirm what she had heard anecdotally, that requesters are self-censoring the information they seek through access requests by specifically asking institutions not to process records that might contain Cabinet confidences. A search of the online open data portal containing completed access to information requests from April 2013 to May 2015 found more than 1,700 such instructions from requesters.

Modernizing the treatment of Cabinet confidences

The Commissioner recommended in her special report on modernizing the Act that Cabinet confidences no longer be excluded from the Act, but rather be subject to an exemption. This would bring Cabinet documents under the right of access and allow the Commissioner to carry out full investigations of institutions’ use of the exemption, with the benefit of her being able to view the records at issue.

The Commissioner also recommended that the proposed exemption for Cabinet confidences only apply to information necessary to protect Cabinet deliberations. For example, purely factual or background information would not be allowed to be withheld, nor would analyses of problems and policy options. In addition, the Commissioner recommended that the exemption for Cabinet confidences not apply to information that is 15 or more years old. (Currently, the documents are subject to an almost absolute protection for 20 years.)

To further facilitate transparency, the Commissioner also recommended a statutory obligation for the government to declassify Cabinet and other records on a routine basis.

The Commissioner will continue to monitor the application of section 69. However, it is difficult to assess whether the provision has been properly applied without being able to review the records. The Commissioner has made several recommendations to amend the Cabinet confidences regime under the Act (see box, “Modernizing the treatment of Cabinet confidences”).

Updates to the Policy on Access to Information

In March 2014, the Commissioner wrote to the Secretary of the Treasury Board with comments on proposed changes to the Policy on Access to Information, which governs the administration of the Act. The Commissioner’s comments focused on, among other things, how to ensure efficient and effective investigations, and to improve the performance of institutions in responding to access requests.

The state of the access system

In October 2014, the Commissioner published her observations on the health of the access system in 2012–2013, including detailed analysis of the annual statistics on access to information operations in 24 institutions.

Based on multiple sources of publicly available information, this analysis provides a comprehensive picture of the state of the access system and sheds light on the possible reasons for the increase in the volume of complaints the Commissioner received the following year.

Given the importance of this work to assessing the health of the access system, the Commissioner will publish her analysis of the data for 2013–2014 in 2015.

As a way to more accurately track and measure institutional performance, the Commissioner recommended in a November 2014 letter to the President of the Treasury Board that Canada’s Open Government Action Plan 2.0 include a commitment to report statistics on the administration of the Act on a quarterly basis.

TBS accepted the Commissioner’s recommendation that the policy acknowledge that it is important for institutions to collaborate with her office to help address complaints in a timely manner.

TBS also agreed that the policy should require institutions to document how they exercise their discretion when invoking exemptions that require it, to facilitate the review of refusal complaints. TBS also said it would add a specific mention in the policy that obstructing the investigation of complaints is an offence under the Act. These changes will be implemented in conjunction with TBS’s policy suite renewal.

However, the Commissioner remains concerned that TBS did not specifically address the need for accountability measures related to improving institutional performance in order to emphasize the importance of the culture change required. For example, the Commissioner had recommended that the performance agreement of the senior executive responsible for access in each institution cover compliance with the Act, including the resolution of complaints. She also recommended that institutions set and report on specific targets for access to information operations in their Report on Plan and Priorities and Departmental Performance Report. These and other measures of this type have proven effective in improving performance in individual institutions and in other fields.

Promoting access across Canada

2014 Grace-Pépin Award recipient

Professor Alasdair S. Roberts, a leading researcher in the field of access to information, was the recipient of the 2014 Grace-Pépin Access to Information Award, recognizing outstanding dedication to advancing the principles of access to information.

Professor Roberts, a Canadian teaching at the Harry S. Truman School of Public Affairs at the University of Missouri, has written widely on access to information. His 2006 book, Blacked Out: Government Secrecy in the Information Age, offers an in-depth analysis of access issues in Canada.

“Throughout his many years of research and writing, Professor Roberts continues to raise the profile of access issues both in Canada and abroad,” the Commissioner said on presenting the award. “His body of work is at the forefront of ongoing discussions surrounding government transparency and accountability.”

Addressing the impact of current issues on access

Information and privacy commissioners and ombudsmen at the federal, provincial and territorial levels from across Canada confer regularly on issues of common and pressing interest, particularly as they relate to upholding the fundamental right of access to government information. In 2014–2015, the Office of the Information Commissioner co-hosted the annual meeting of commissioners and ombudsmen in Ottawa. As a result, the commissioners and ombudsmen issued two joint resolutions on current matters affecting the right of access.

In the first—released in late October 2014 in the immediate aftermath of the deaths of two Canadian servicemen on home soil—the commissioners and ombudsmen underlined the need for Canada to uphold fundamental rights and freedoms while taking steps to enhance security. The Information Commissioner followed this statement with a letter to the House of Commons Standing Committee on Public Safety and National Security, sharing her concerns about Bill C-44, An Act to amend the Canadian Security Intelligence Service Act and other Acts. In her letter, she noted that this legislation would have a negative effect on her ability to carry out her oversight role and on the amount of information that could be subject to disclosure under the Access to Information Act.

In the second joint resolution, issued in mid-November 2014, the commissioners and ombudsmen focused on the need for governments to modernize their information management practices to better protect and promote the rights of Canadians in the digital era.

In particular, the commissioners and ombudsmen urged their respective governments to review and modernize their information management frameworks by, among other things, embedding access rights in the design of public programs and systems, and creating a legislative duty for government employees to document their deliberations, actions and decisions. The commissioners and ombudsmen also recommended that governments adopt safeguards to prevent the loss or destruction of information, including digital records, so that they can easily be retrieved when needed, including to respond to access requests.

Assisting with the review of Newfoundland and Labrador’s access law

In August 2014, the Commissioner appeared before a committee reviewing Newfoundland and Labrador’s Access to Information and Protection of Privacy Act. The Commissioner presented her perspective on freedom of information and recommended improvements to the provincial law to help balance the confidentiality required to conduct the business of government with the need to ensure citizens have access to public information such that they can hold their governments to account. The Commissioner also submitted detailed comparative legislative research.

The committee made 90 recommendations to improve and streamline the law, many of which mirrored the Commissioner’s recommendations. The provincial government amended the law accordingly, and these changes came into effect on June 1, 2015. Newfoundland and Labrador’s access law is now the top-ranked in Canada, according to the Centre for Law and Democracy’s Right to Information Rating.

Sharing the Commissioner’s mandate and priorities with stakeholders

Over the course of the year, the Commissioner and a number of officials from her office spoke about her mandate and priorities to a variety of stakeholders, including Federal Court and Federal Court of Appeal law clerks, members of the federal access to information and privacy community, and new public servants. Reaching out to law and public administration students was also important to raise awareness about the requirements of the Access to Information Act. In addition, the Commissioner spoke at access-related conferences organized by the Canadian Bar Association, the University of Alberta and the Office of the Information and Privacy Commissioner of Newfoundland and Labrador.

Making the case for access on the international stage

Canada, as a pioneer in the field of access to information, has an important role to play in sharing the benefit of its knowledge and experience with the international access community.

In 2014–2015, the Commissioner was part of two panels convened by the Organization of American States (OAS) on equitable access to public information. The first, in August 2014 in Guatemala, focused on best practices associated with the characteristics, powers and composition of oversight bodies, such as information commissioners’ offices. In March 2015 in Argentina, the Commissioner and fellow panellists shared their experiences with and thoughts on adopting and implementing access laws.

This work follows on the development of the 2012 OAS Model Inter-American Law on Access to Public Information and its Implementation Guidelines, to which the Office of the Information Commissioner made a significant contribution. This work by the OAS was funded by Foreign Affairs, Trade and Development Canada.

As a result of the workshops, some Latin American countries, including Argentina, have either used the Model Law as the basis for their own laws or are in the process of incorporating some of the Model Law’s principles into their existing laws. The Commissioner’s special report on modernizing the Act was also informed by the Model Law.

Advising Parliament

As an agent of Parliament, the Commissioner provides advice to Parliament on important access-related matters and on the functioning of her office to ensure sufficient ongoing oversight of the access system.

Committee appearances

In May 2014, senior officials appeared on the Commissioner’s behalf before the House of Commons Standing Committee on Access to Information, Privacy and Ethics to discuss the Main Estimates. The officials spoke about the Commissioner’s budget and priorities, and the risks to her office that ongoing financial pressures and a growing workload presented. An appearance by the Commissioner before the same committee in December 2014 also covered the resources her office has available to carry out her mandate.

Bill could affect the integrity of investigations

In her remarks to the Senate Standing Committee on National Finance on Bill C-520, the Commissioner spoke about the impact of the proposed legislation on her investigations and the right of access.

“In reviewing the bill many times, Mr. Chair, the only conclusion I can come to is that past political or partisan activity could be used to assert the existence of a possible bias in the conduct of our investigations or audits. If the reason for the collection and publication of this personal information is to assert bias, then that raises very serious issues. It could affect the integrity of our investigations; it would politicize our investigations; and it would definitely undermine our effectiveness as agents of Parliament.”

On January 28, 2015, the Commissioner and several of her fellow agents of Parliament appeared before the Standing Senate Committee on National Finance on Bill C-520, An Act supporting non-partisan offices of agents of Parliament. (The agents also sent a joint letter to the committee on the subject.) This proposed law seeks to prevent conflicts that could occur or could be perceived to occur between, on the one hand, the official duties and responsibilities of employees of agents of Parliament and, on the other, their past or future partisan activities. During her appearance, the Commissioner shared her and her employees’ concerns about the bill and how it could affect the work of her office (see box, “Bill could affect integrity of investigations”).

Reporting to Parliament

Each year, the Commissioner issues reports to Parliament to provide perspective on her oversight role within the access to information system and on her work to uphold the principles of access at the federal level.

Early in 2014–2015, the Commissioner published her second report into instances of interference with access to information requests at Public Works and Government Services Canada. (See “Interference at Public Works and Government Services Canada” in the Commissioner’s 2013–2014 annual report for more information.)

On the record

On May 7, 2015, Bill C-59 was tabled in Parliament. As you know, I have serious concerns with Division 18 of this Bill.

First, this division will effectively make the Access to Information Act non-applicable, retroactive to October 25, 2011, even before the coming into force of ELRA [the Ending the Long-gun Registry Act]. You must ask yourself why?

Second, Division 18 shields from the application of the Access to Information Act a broader scope of records than ELRA ever did. It covers not just the records in the Long-gun Registry as ELRA did, but any records with respect to the destruction of those records.

This probably means that no one will be able to request information about whether the RCMP has really deleted his or her information from the Registry or about how much the destruction of the Registry cost Canadian taxpayers. Indeed, no one will be able to find out what transpired in relation to the destruction of the records at issue in my investigation. This is above and beyond what was ever considered by Parliament in 2012. You must ask yourself why?

Third, if Division 18 is adopted, it would potentially

  • nullify the request at issue in my investigation;
  • nullify the complaint made to my Office;
  • nullify my entire investigation, including production orders‒some 30,000 records‒and examinations of witnesses under oath;
  • nullify my recommendations to the Minister of Public Safety and my referral to the Attorney General;
  • nullify my application to the Federal Court;
  • nullify the police investigation referred to the OPP;
  • nullify all potential administrative, civil or criminal liability of any of the actors involved; and
  • essentially nullify the requester’s right in this case.

You must ask yourself why?

These proposed changes, Mr. Chair, would retroactively quash Canadians’ right of access and the government’s obligations under the Access to Information Act. It will effectively erase history.

Mr. Chair, Division 18 of Bill C-59 is not an attempt to close a loophole; but rather it is an attempt to create a black hole.

Given the fundamental importance of the right of access and the rule of law in Canadian democracy, I would urge this committee to remove Division 18 (clauses 230 and 231) from this bill.

–Information Commissioner Suzanne Legault, remarks to the Standing Senate Committee on National Finance, June 3, 2015

A highlight for 2014–2015 was the Commissioner’s special report on modernizing the Access to Information Act, released on March 31, 2015. Called Striking the Right Balance for Transparency, the report contains 85 recommendations that propose fundamental changes to the Act to resolve recurring problems. The Commissioner’s recommendations are also designed to help ensure that the Act is effective in both protecting information that legitimately needs to be protected and allowing requesters to gain access to information to help them hold the government to account.

Some of the report’s key points are aimed at creating a culture of openness by extending coverage of the Act to all branches of government; setting tighter timelines for the processing of requests; maximizing disclosure by ensuring that exemptions protect only what is strictly necessary; and strengthening the oversight of the access to information regime.

The Commissioner also issued a special report in May 2015 on her investigation into the treatment by the Royal Canadian Mounted Police of an access to information request for the data in the national long-gun registry (see also “Access to information: Freedom of expression and the rule of law”). In early June 2015, the Commissioner appeared before both a House of Commons and a Senate committee to present her concerns about the government’s bill to remove the national long-gun registry data from the coverage of the Access to Information Act (See box, “On the record,” for an excerpt of her remarks before the Senate committee.)