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The positive highlight of the year was the election promise by now Prime Minister Harper to make it one of his very first orders of business to introduce the "Open Government Act". This Act – a package of comprehensive amendments to strengthen the Access to Information Act – was drafted by the Office of the Information Commissioner at the request of the pre-election Standing Committee on Access to Information, Privacy and Ethics. It received the approbation of the Standing Committee in one of its final acts before the election. Many of the proposals contained in the proposed Open Government Act were also endorsed by Justice Gomery in his second report.
At the end of this reporting year, Parliament had not resumed and so, at this writing, there are many unknowns, including whether or not the new government will get "cold feet", and how the other parties will react to the proposed Open Government Act in a minority government situation. Information commissioners, through bitter experience, have a profound appreciation for the ability of governments to disappoint when it comes to making good on promises to beef-up access rights. Even new governments, history has shown, quickly lose the courage and determination to give Canadians stronger access to information rights. Nevertheless, in the 23 years since the Access to Information Act came into force, this is the closest we have ever come to comprehensive reform and strengthening of this law.
The need for reform is pressing. Year after year, by commissioner after commissioner, Parliament is told that many public officials – both elected and non-elected – just don’t get it! They don’t get the basic notion that, in passing the Access to Information Act in 1983, Parliament wanted a shift of power away from ministers and bureaucrats to citizens. Parliament wanted members of the public to have the positive legal right to get the facts, not the "spin"; to get the source records, not the managed message; to get whatever records they wanted, not just what public officials felt they should know.
Ministers and bureaucrats, regrettably, didn’t get the memo on this one! Still, after almost 23 years of living with the Access to Information Act, the name of the game, all too often, is how to resist transparency and engage in damage control by ignoring response deadlines, blacking-out the embarrassing bits, conducting business orally, excluding records and institutions from the coverage of the Access to Information Act, and keeping the system’s watchdog overworked and under-funded.
No; of course not – it is not all bad news. There has been progress. But the clear lesson of these past years is that governments continue to distrust and resist the Access to Information Act and the oversight of the Information Commissioner. Even in its very early days, the new government has already launched a court action against the Information Commissioner, challenging powers that the Information Commissioner has exercised for many years, and which even the litigious Chrétien administration did not challenge.
Vigilance, by users, the media, academics, the judiciary, information commissioners, and Members of Parliament, must be maintained against the very real pressures from governments to take back from citizens the power to control what, and when, information will be disclosed.
Each and every one of the fine initiatives to improve government accountability that were put forward by Justice Gomery, by the parties during the election and by the Liberal government in response to the sponsorship scandal, require the nourishment of unfiltered knowledge about what goes on in government, if they are to be truly effective. There can be no true accountability, or true disincentive for corruption and maladministration, without the bright light of transparency. That was the motivation for the changes the Information Commissioner published this year in the form of the Open Government Act.
At the heart of the suggested changes is a mandatory requirement to create records, backed up by penalties for non-compliance. Once adopted, one of the top priorities of the public service – if not the government – will be to establish record-creation and record-retention protocols for every business line and activity of government – from staffing and classification, to pay and benefits, to contracting, to grants and contributions, to investigations and audits, to policy development and advice-giving and to managerial activities. Why will all this be a priority? Because accepted record-creation and record-retention standards for all business lines will be a prudent defence against accusations of failure to comply with this new duty to create records.
Justice Gomery also saw this critical link between records management and good accountable governance. This is what Justice Gomery had to say:
"The Commission concurs with the Information Commissioner that there should be mandatory record-keeping in government, and that the obligation to create a "paper trail" should be something more than a matter of policy. It should be an explicit part of the law of Canada."
"Accordingly, the Commission agrees that the Access to Information Act should be amended to include an obligation on the part of every officer and employee of a government institution to create records that document decisions and recommendations, and that it should be an offence to fail to create those records. Going further, the Commission believes that there should also be free-standing record-keeping legislation which would require public servants and persons acting on behalf of the Government to collect, create, receive and capture information in a way that documents decisions and decision-making processes leading to the disbursement of public funds. This would make it possible to reconstruct the evolution of spending policies and programs, support the continuity of government and its decision-making, and allow for independent audit and review. Such record-keeping legislation should state clearly that deliberate destruction of documentation and failure to comply with record-keeping obligations are grounds for dismissal."
"The reason for the creation of legal obligations to maintain and not to destroy government records, in addition to similar rules in the access to information regime, is that the rationale for mandatory record-keeping does more than facilitate public access to information: it ensures good government and accountability, a requirement consistent with the theme of the Commission’s overall recommendations."
[Gomery Report #2 at pp. 180-181]
Indeed, the legal requirement to create records is a vitally important first step – but only a first step. The entire life cycle of recorded information held by government requires regulation. The good guidance given in the government’s policy on management of government information (MGI Policy) has not been implemented in practice to an acceptable extent. Now is the time for a comprehensive information management act that will enshrine accountabilities for monitoring and enforcement – accountabilities which are, at present, highly confusing.
At present, the only statute that specifically mandates a minister to pay attention to how the government’s information is managed is the Access to Information Act. Section 70 of the Act contains this provision:
Section 70(1) "… the designated Minister (President of the Treasury Board) shall
(a) cause to be kept under review the manner in which records under the control of government institutions are maintained and managed to ensure compliance with the provisions of this Act and the regulations relating to access to records."
This is the statutory basis for the MGI policy, yet no President of the Treasury Board, in the 23 years since the Act’s passage, has ever caused a single study to be made into the effect on access rights of information management practices. Yes, there have been efficiency studies, and e-government studies, and procurement initiatives and standards, and all the other good and important initiatives undertaken over the years by the Chief Information Officer Branch of the Treasury Board Secretariat, but virtually no attention paid to the statutory mandate.
The Office of the Information Commissioner intends to devote some considerable attention to monitoring how the Treasury Board Secretariat (TBS) is fulfilling its statutory obligations under the Access to Information Act, and this is, perhaps, the most important of those obligations. The other obligation placed on TBS by law is to ensure that all government institutions capture and report annually statistics on how the Access to Information Act is being administered. For almost 23 years, TBS has been content to capture only basic descriptive information, such as numbers of requests, categories of requesters, exemptions invoked, and so forth. Statistics that reveal performance deficits or successes are not captured. For example, government institutions are not required to publish the percentage of requests received that are answered late – a highly reliable predictor of the state of health of access administration in any institution. If the proposed Open Government Act is adopted, some gathering of basic performance data would be mandatory.
The proposed new Open Government Act, which the Information Commissioner presented to the Standing Committee on Access to Information, Privacy and Ethics in October of 2005, contains 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. Cabinet confidentiality risks being broadly, and too self-servingly, applied by governments when it is free from independent oversight.
- 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, this would include all Crown Corporations, Foundations and Agents of Parliament, as well as ministers’ offices and the Prime Minister’s Office. 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 is the time to 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 secrecy provisions in other statutes be permitted to be mandatory, in perpetuity, without meeting any of the tests of 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.