Introduction

Canada’s access to information law—the Access to Information Act— came into force in 1983.Footnote 1 The Act provides Canadian citizens, permanent residents, and individuals and corporations who are present in Canada with the right to access government information, subject to certain limitations. The Information Commissioner, with the support of the Office of the Information Commissioner of Canada, conducts efficient, fair and confidential investigations into complaints about institutions’ handling of access to information requests. As such, the Information Commissioner brings a unique perspective and expertise on the operation of the Act.

The right of access has quasi-constitutional status in Canada.Footnote 2 The Supreme Court of Canada has also held that the overarching purpose of access legislation is to facilitate democracy by helping ensure that citizens have the information they need to participate meaningfully in the democratic process and that politicians and bureaucrats remain accountable to the citizenry.Footnote 3

The right of access also derives from section 2(b) of the Canadian Charter of Rights and Freedoms (the right of free expression), where access to government information is a necessary precondition of meaningful expression on the functioning of government.Footnote 4

The Access to Information Act marked its 30th anniversary in 2013. Over the Act’s three decades of existence, technology, the administration of government and Canadian society have been transformed in many regards. And yet, despite these changes, the Act remains largely in its original form.

When the Act became law, information was mostly paper-based. Now, virtually all information is in electronic or digital form. The sheer volume of electronic data and the speed and methods of transmission have challenged government’s ability to collect, store, manage and share information with the public.

Moreover, the administration of government has undergone a fundamental shift since the early 1980s. Now, partnerships with, and outsourcing to, the private sector have become increasingly common ways for government to deliver services to the public.  As well, policy development and decision-making increasingly takes place in ministers’ offices, which are not covered by the Act. As a result, accessing records necessary to hold government to account has become more complex, or, in some cases, impossible.

Lastly, many governments, including Canada’s, have joined the international Open Government Partnership in response to an increasing desire on the part of the public for more transparency and accountability from government.Footnote 5 A key component of an effective and open government is a modern access to information law that maximizes timely disclosure of government information in electronic, non-static formats. This influx of information to the public increases accountability and facilitates collaboration between government and the citizenry about how best to deliver programs and services.

In light of these developments, the Commissioner recommends modernizing the Access to Information Act by:

  • extending coverage to all branches of government;
  • improving procedures for making access requests;
  • setting tighter timelines;
  • maximizing disclosure;
  • strengthening oversight;
  • disclosing more information proactively;
  • adding consequences for non-compliance; and
  • ensuring periodic review of the Act.

The Commissioner relied on a variety of sources when developing the recommendations in this report. Key sources are listed at the end of this report. (Other sources are cited in the footnotes.) Generally, the Commissioner focussed on access to information laws of other jurisdictions, model laws and guides, Canadian reports on access reform, government and private members’ bills, policy instruments, assessment tools from civil society, consultations with the public and previous reform proposals from information

Footnotes

Footnote 1

RSC, 1985, c A-1.

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Footnote 2

Canada (Information Commissioner) v Canada (Minister of National Defence), 2011 SCC 25 at para. 40.

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Footnote 3

Dagg v Canada Minister of Finance, [1997] 2 SCR 403 at para. 61.

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Footnote 4

See Ontario (Public Safety and Security) v Criminal Lawyers’ Association, 2010 SCC 23 at para. 30.

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Footnote 5

Open Government Partnership

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