Access to information laws of other jurisdictions
Comparing elements of the Actto aspects of the laws found elsewhere highlighted what has become standard in the legislation in Commonwealth jurisdictions (such as the Canadian provinces, as well as the United Kingdom, Australia and New Zealand), in other democracies (such as the United States, Mexico and India) and also in those countries whose access laws have been singled out as being particularly strong. These include the 10 laws that received the highest scores on the Global Right to Information Rating (discussed below).
Model laws and guides
Model laws and guides on access to information reflect the highest standards and best practices for access to information legislation. They also provide a framework for enacting or amending legislation. The following were particularly considered:
Model Inter-American Law on Access to Public Information: Drafted by the Organization of American States (of which Canada is a member), in consultation with high-level public officials, experts, academics, and private sector and civil society representatives, this model law provides for the broadest possible right of access to public information among member countries. The law received 142 out of a possible 150 points on the Global Right to Information Rating—the highest score to date.
Open Government Guide: The Transparency and Accountability Initiative, with the support of the Open Government Partnership (OGP), developed this guide to help governments develop the action plans required as part of their membership in the OGP. The guide includes a chapter on the right to information.
The Global Principles on National Security and the Right to Information (Tshwane Principles): Published in 2013, these principles are the most current guidelines on how to balance access to information with other interests. They are intended for those engaged in drafting, revising, or implementing laws or provisions relating to the state’s authority to withhold information on national security grounds. However, the general principles are relevant for all aspects of an access law. The principles are based on international and national law, standards, good practices and expert opinions. They were drafted by representatives from 22 organizations and academic centres, in consultation with more than 500 experts from more than 70 countries.
A Model Freedom of Information Law: This model law, developed by the civil society group named Article 19 sets out standards for national and international freedom of information legislation, based on international and regional laws and norms, evolving state practice (as reflected in national laws and the judgments of national courts) and the general principles of law recognized by the community of nations. The United Nations and the Organization of American States have both endorsed this model law.
High-level Canadian reports on access reform
Canadian parliamentary committees, a special task force and the Department of Justice Canada have all studied the Act with a view to reform. The following were among the reports whose analysis and recommendations the Commissioner considered in the drafting of her report:
Open and Shut: Enhancing the Right to Know and the Right to Privacy: Section 75(2) of the Actrequired a parliamentary committee to conduct a comprehensive review of the provisions and operations of the Act no later than July 1, 1986 (three years after the Act came into force). Published in 1987,the report of the House of Commons Standing Committee on Justice and Solicitor General concluded that the Act had “major shortcomings and weaknesses.”
Access to Information: Making it Work for Canadians: In 2002, the Access to Information Review Task Force, composed of public servants and advised by two advisory committees, was mandated with reviewing the Act. The task force also assessed the appropriateness and adequacy of the legislation, regulations and policies that related to the Act, and examined how they were being interpreted and applied within the federal government. The resulting report contained nearly 140 recommendations to improve access to information at the federal level.
Government and private members’ bills
The Acthas not been comprehensively amended since it was enacted, although Parliament has passed a number of piecemeal amendments. In addition, some private members’ bills have unsuccessfully tried to reform or otherwise change the Act.The Commissioner considered this legislative activity when formulating her recommendations.
Policy instruments from the Treasury Board of Canada Secretariat
The President of the Treasury Board is the designated minister responsible for administering the Access to Information Act. In this capacity, the Treasury Board of Canada Secretariat has published a number of policy instruments, best practices, manuals, guidelines and tools to support the administration of the Act. It also collects and publishes statistics each year on individual institutions’ access to information operations. The Commissioner took these and the various policies and related guidance into consideration when formulating her recommendations.
The Global Right to Information Rating was particularly useful in drafting this report. This is a tool for assessing the overall strength of a country’s access to information law. The rating indicates the strengths and weaknesses of laws in seven categories: right of access, scope, requesting procedures, exceptions and refusals, appeals, sanctions and protections, and promotional measures. The tool was launched in 2011 and updated in 2013 by Access Info Europe (Spain) and the Centre for Law and Democracy (Canada), two civil society organizations with expertise on access to information.
During a four-month consultation starting in Fall 2012, the Commissioner asked the public for advice and input on a broad range of issues related to the Act. Her questions encompassed all aspects of the current access to information regime, such as the coverage of the Act, exemptions and exclusions, and the powers of the Information Commissioner.
In response, the Commissioner received submissions from 44 groups and individuals—including two petitions totalling more than 2,300 signatures—representing a broad spectrum of opinions, both from Canada and internationally. This report draws on those submissions, a summary of which may be found on the Commissioner’s website.
Commissioner’s reform proposals
This report took into account a number of reform proposals and supporting materials prepared by previous information commissioners. These include Commissioner John Reid’s 2006 draft bill, entitled the Open Government Act, and 2009 reform proposals by Commissioner Robert Marleau.
In addition, the commissioners’ annual and special reports to Parliament, as well as investigation findings, advisory notices and joint resolutions with provincial and territorial commissioners have all informed the recommendations in this report.