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Chapter 1. The Federal Accountability Act: Limited Benefits for Transparency
The Access to Information Act provides Canadians with a general right of access to federal government information. To protect this right and encompass the entire spectrum of records institutions hold, the Act must rest on strong foundations, including broad coverage, explicit and narrow safeguards to protect sensitive information, and a compliance model that ensures timely, accurate and complete responses to access requests.
The Federal Accountability Act (FedAA), which received Royal Assent on December 12, 2006, introduced incongruous amendments to the access law—increasing the number of institutions covered while adding institution-specific exemptions and exclusions that limited its scope. These changes introduced a patchwork regime to the Access to Information Act that is gradually eroding its status as a law of general application and moving it away from modern access to information regimes.
The desired coverage of access to information legislation has long been a subject of study and debate in Canada, and has been called "the most complex, amorphous and perplexing topic in [Freedom of Information] theory and practice." There are no commonly agreed upon criteria, in Canada or on the part of international organizations, for determining which bodies should be covered by access laws. Commentators usually advocate for general definitions that reflect the principles of openness and accountability embedded in access to information laws. As a result, the criteria governments use to define organizations subject to these laws tend to be general enough to ensure broad coverage—taking into account how organizations are constituted, their functions or the services they provide, how they are funded and the degree of control the government has over them.
A principled-approach to entity coverage
In Canada, criteria used to determine which institutions are covered by the Access to Information Act should reflect the principles of openness and accountability embedded in the Act and its quasi-constitutional nature. The Act should be amended to explicitly prescribe criteria to be used in determining entity coverage along the following lines:
- institutions publicly funded in whole or in part by the Government of Canada, including those with the ability to raise funds through public borrowing;
- institutions publicly controlled in whole or in part by the Government of Canada, including those for which the government appoints a majority of the members of the governing body; and
- institutions that perform a public function, including those in the areas of health and safety, the environment and economic security.
In Canada, the institutions covered by the Access to Information Act are listed in Schedule I or are Crown corporations (and any of their wholly owned subsidiaries), as defined in section 83 of the Financial Administration Act. The Access to Information Act does not set out criteria for including institutions in Schedule I, nor are any listed in a policy as a guideline. As a result, it remains unclear how the government chose the new institutions that were to be covered due to the FedAA. As it turned out, seven Crown corporations, six Agents of Parliament, five foundations and a number of other organizations that spend taxpayers’ money or perform public functions were added.1 Most of the new institutions introduced are wholly owned subsidiaries of Crown corporations. As a group, these institutions accounted for about 4 percent of all requests the government received in 2007–2008, 3 percent in 2008–2009 and 2 percent in 2009–2010.
Even now, not all organizations that spend taxpayers' money or perform public functions are covered by the Act. For example, the House of Commons, Senate and courts are not covered—in contrast to a recommendation from a parliamentary committee made as early as 1987 that they be included.2 Former Information Commissioner Robert Marleau also advocated in favour of their inclusion in 2009.
Beyond these are numerous other institutions that are not covered by the Act (see Appendix A for more details). These are institutions—known as "other corporate interests"—in which the federal government has an interest or of which it participates in the oversight, including mixed enterprises, joint enterprises, international organizations, shared governance corporations and corporations under the terms of the Bankruptcy and Insolvency Act. TheAnnual Report to Parliament—Crown Corporations and Other Corporate Interests of Canada 2010, published by the Treasury Board of Canada Secretariat defines these terms and lists these institutions. The OIC could not assess through public documents the amount of funding the Government of Canada provides to these organizations each year.
Table 1. Current number of "other corporate interests" of the Government of Canada
July 31, 2010
July 31, 2009
|Shared governance corporations
|Corporations under the terms of the Bankruptcy and Insolvency Act
Source: Treasury Board of Canada Secretariat
It is when looking at which of these institutions are covered by the Act that the patchwork approach to the coverage becomes most noticeable. Only 15 percent of the organizations in which the government has a corporate interest are covered by the Act. For example, the Canadian Wheat Board, the International Centre for Human Rights and Democratic Development, and port authorities across Canada are covered. However, the Canada Health Infoway Inc., airport authorities and the Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games are not. Of perhaps greater concern is that none of the joint governance corporations in the environment and health portfolios-areas in which Canadians should expect a high degree of transparency-are covered by the Act.
New Exemptions and Exclusions
The purpose of the Access to Information Act is to codify the right of access to information held by the government. It is not to codify the government's right of refusal. Access should be the normal course. Exemptions should be exceptional and must be confined to those specifically set out in the statute.3
Typically, when expanded coverage of access legislation is considered, new institutions argue in short order that the existing exemptions may not adequately protect their interests. Limitations on access to records under the control of any institution to be added to the Act were advocated by the Access to Information Review Task Force in 2002.4
Once the government determined which institutions would be covered by the Act through amendments introduced in the FedAA, it proposed a number of new and institution-specific protections that limited access to information holdings, justifying them on the basis of their unique characteristics. As shown in Table 2, these limitations included 10 new exemptions. Seven are mandatory, do not require the institution to show that injury would result from disclosure of the information in question, are not time-limited and contain no public interest or consent overrides (see box, "Exemptions under the Access to Information Act"). Three exemptions are discretionary but contain no injury test, and one of these two protects records for 15 years. The FedAA also added two new institution-specific exclusions.
Exemptions under the Access to Information Act
The Access to Information Act contains two types of exemptions, commonly referred to as mandatory and discretionary. Mandatory exemptions begin with the phrase, "The head of the institution shall refuse to disclose." Discretionary exemptions begin with, "The head of the institution may refuse to disclose."
In addition, the Act contains two types of test, commonly referred to as a class test and an injury test. A class test is used to identify categories of information to which certain exemptions of the Act may be applied. An injury test is used to determine whether a record contains information the disclosure of which could reasonably be expected to cause injury.
The Act also contains consent and public interest overrides in specific circumstances. This means that the head of the institution, after being satisfied that an exemption applies, may disclose the information with the consent of the person to whom the information relates or when the disclosure is in the public interest.
Exemptions and exclusions added to the Access to Information Act by the Federal Accountability Act
||Records relating to investigations, examinations and audits
Commissioner of Official Languages
||Records relating to investigations
||Commissioner of Lobbying
||Records relating to investigations or conciliation
||Public Sector Integrity Commissioner
||Records relating to the Public Servant Disclosure Protection Act
||All government institutions
||Advice or information relating to investments
||Public Sector Investment Board
||Advice or information relating to investments
||Canada Pension Plan Investment Board
||Contracts for the service of a performing artist or the identity of a donor
||National Art Centre Corporation
||Investigations, examinations and reviews under the Canada Elections Act
||Chief Electoral Officer
||Economic interest of certain government institutions
Canada Post Corporation
Export Development Canada
Public Sector Pension Investment Board
Via Rail Canada Inc.
||Draft internal audits
||All government institutions
||Information that relates to journalistic, creative or programming activities
||Canadian Broadcasting Corporation
||Information that is under the control of the institution other than about general administration or operation of any nuclear facility
||Atomic Energy of Canada Limited
Representatives from some of the institutions that the OIC surveyed for the 2009–2010 report cards appeared before the House of Commons Legislative Committee on Bill C-2 (the Federal Accountability Act), as well as the Senate Standing Committee on Legal and Constitutional Affairs to discuss the implications of their institution becoming subject to the Access to Information Act. Among the concerns expressed by these officials was the need to protect journalistic and programming activities, commercial competitive activities, and audit and investigation records.
Most of the exemptions and exclusions listed in Table 2 parallel other limitations already in the Act that apply to all government institutions. The need for specific limitations is questionable when a more general scheme exists. For example, the Act now contains two ways of dealing with investigative records, depending on from which institution information is requested. On the one hand, all institutions that carry out investigative functions may apply various discretionary exemptions with and without an injury test. On the other, Agents of Parliament have their own mandatory exemption for records associated with investigations that provides more than the general protection the other exemptions offer. This is despite the fact that the investigative functions of Agents of Parliament are similar to those of other institutions. In the months preceding the adoption of the FedAA, former Information Commissioner John Reid said in a special report that "the contention that the newly added institutions require more secrecy for their investigative and audit function than do our police, security and intelligence agencies, has no merit." Similar dual regimes were introduced for records related to economic interests and third-party information.
The net effect has been an additional level of complexity in the Act. This has also caused uncertainty in the legal interpretation of these new limitations and, consequently, an increase in complaints and litigation. For example, the new institutions accounted for 26.1 percent of all the complaints the OIC registered in 2007-2008, 14.6 percent in 2008-2009 and 11.7 percent in 2009-2010.5A large proportion of these complaints were against the Canadian Broadcasting Corporation (CBC). The OIC has put its investigations into some of these complaints on hold due to legal proceedings brought by the CBC. The institution is challenging the Commissioner's powers in relation to the investigation of these complaints. At the time of writing, 181 complaints against the CBC were on hold pending resolution of this litigation.
All in all, the new limitations in the Act erode the general principle of there being a universal right of access to information under the control of federal institutions. The exemptions and exclusions also run counter to the common direction that modern access to information legislation is taking, with all limitations being discretionary and including an injury test and a public interest override.
A principled approach to the right of access
In order to reflect the principles of openness and accountability embedded in the Access to Information Act, as well as its quasi-constitutional nature, exemptions to a universal right of access should have the following characteristics:
- They should be discretionary.
- They should require a demonstration that a defined injury, harm or prejudice would probably result from disclosure.
- They should be subject to a public interest override.
How does the performance of the new institutions compare to that of the others? As illustrated by Figure 1, while the new FedAA institutions answered a larger proportion of requests in 30 days or fewer than their federal counterparts in 2009– 2010, they also responded to proportionally more in 61 days and longer.
In terms of how much information is disclosed, Figure 2 illustrates that the FedAA institutions tend to release proportionally less information than do the others, which likely reflects the new exemptions and exclusions introduced for these institutions under the FedAA. Chapter 3 provides detailed information on the exemptions and exclusions of the eight institutions surveyed for 2009–2010.
Although the FedAA institutions account for only a small percentage of the requests the federal government receives annually, they are the subject of a larger proportion of registered complaints with the OIC than that request volume would suggest (Figure 3).
Although the FedAA was a laudable effort to expand coverage of the Act, it did not go far enough to include all institutions that spend taxpayers' money or perform public functions. This was the result of the government taking a piecemeal approach to expanding coverage rather than following guiding principles that respect the basic tenets of the Act. Most troubling is the addition of new exemptions and exclusions that shelter a portion of these new institutions' information from access and create dualities throughout the Act. Overall, the changes brought in by the FedAA have led to limited benefits for transparency.
The Office of the Lobbying Commissioner, an Agent of Parliament, only became subject to the Act in July 2008.
Open and Shut: Enhancing the Right to Know and the Right to Privacy, Report of the Standing Committee on Justice and Solicitor General on the Review of the Access to Information Act and the Privacy Act, 1987, Recommendation 2.3, p. 9.
Canada (Information Commissioner) v. Canada (Minister of Employment and Immigration),  3 F.C. 63 (T.D.)
Making it Work, op. cit., note 9, p. 25.
Including complaints registered against the Office of the Information Commissioner.