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Amending the Access to Information Act
In this reporting year, for only the second time since the Act came into force, changes were made to the Act at the government’s initiative. The first was in 1992 when the government amended subsection 12(3) of the Act to provide persons with sensory disabilities with a right to request access to records in alternative formats. This year’s changes were included in Bill C-2, An Act providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability (The Federal Accountability Act), which received royal assent on December 12, 2006.
In April of 2006, the former Information Commissioner submitted a Special Report to Parliament setting out his concerns about the access amendments contained in Bill C-2. Those concerns will not be repeated here; overall, however, the Special Report expressed the view that the amendments, requiring some previously accessible records to be, henceforth, kept secret (i.e. records relating to reports of wrongdoing and internal audits), were not justifiable. As well, it expressed the view that the special exemptions and exclusions designed for newly added institutions are unjustifiably broad. Indeed, a bill intended to reduce the scope of secrecy authorized by the Federal Accountability Act (Bill S-223) has already been introduced in the Senate, on February 15, 2007, by a Liberal Senator (Senator Lorna Milne).
History has shown that the care and nurturing of the Act falls largely to Senators and MPs who are not in Cabinet. That is understandable. Governments of all political stripes find it a challenge to wield power (and keep power) without keeping secrets - or, at least, without maintaining control over the timing and "spin" of information disclosures. It is no surprise, then, that the only "muscle" added to the Act since 1983 came by way of Colleen Beaumier’s private member’s bill, introduced in 1997, to make it an offence to destroy, alter, or conceal records (or to counsel such activities) for the purpose of thwarting the right of access. And, too, it is no surprise that no government has proposed any significant reform bill for access to information - it fell to two backbench MPs, John Bryden and Pat Martin, to champion comprehensive reforms. Through their diligence, and the broad support for access reform they generated, it now seems more likely than ever that government will introduce a comprehensive reform bill.
Some may say: Be careful what you wish for! A government’s access reform bill might weaken access, not strengthen it! From a government’s perspective, reform might entail making it easier to justify secrecy, making it more expensive to use the Act, weakening the power of oversight, removing classes of records from the Act’s coverage, and so forth. The government’s discussion paper on access reform (released on April 11, 2006) did little to allay such fears.
Happily, the Standing Committee on Access to Information, Privacy and Ethics has held the government’s feet to the fire (both a Liberal and a Conservative government). In this reporting year, the Committee investigated an incident of alleged improper disclosure within government of the identity of an access requester. In its report, the Committee offered constructive guidance to public officials concerning their obligation to restrict dissemination of requester identities and to be "blind" to requester identities when making decisions about the timing and content of disclosures.
As well, in this reporting year, the Committee called senior officials to appear from government institutions that received a failing grade on the "report card" reviews conducted by the Office of the Information Commissioner. Being forced to give public explanations for poor performance to a parliamentary committee captured the attention of government. Detailed remedial plans were ready when officials appeared to give their evidence, and those plans are being implemented in the knowledge that this Commissioner and the Committee are keenly interested onlookers.
Most important, the Committee has insisted, in a report to Parliament, that the government come forward with a bill to comprehensively reform the Act.
The previous Information Commissioner, at the request of the Committee, prepared a draft access reform bill drawing from modern access legislation in other jurisdictions, previous private members’ bills, the results of the statutorily mandated three-year review of the Act by a House of Commons committee, and the experience of the Office of the Information Commissioner over 23 years. It offers members of Parliament and the public a yardstick against which to measure any reforms brought forward by government.
This Commissioner, too, stands ready to assist the government and Parliament as they carry out their respective roles of proposing and disposing of legislation. He has, in this regard, offered the collaborative assistance of his office to the Minister of Justice and President of the Treasury Board, in the development of any legislative initiative to reform the Access Act - better to address areas of disagreement before the fact, if at all possible.