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Information Commissioner supports the Council of Europe's Convention on Access to Official Documents

Ottawa, November 25, 2008

The Information Commissioner of Canada has written to the Chairman of the Council of Europe Committee of Ministers regarding the proposed Convention on Access to Official Documents. The Convention is an important initiative aimed at developing an international treaty on the right to information.

In the context of Canada's experience with access legislation, the Commissioner encourages the drafters to strengthen the Convention so that it will serve as a progressive model for nations endeavouring to foster a culture of openness in public institutions.

Mr. Carl Bildt
Minister of Foreign Affairs,
Chairman of the Council of Committee of Ministers
Ministry for Foreign Affairs

Dear Mr. Bildt:

As Information Commissioner of Canada, I am writing in support of the Council of Europe’s groundbreaking initiative to develop the world’s first international treaty on access to information.  When ratified, the Convention on Access to Official Documents should serve as a model for nations endeavouring to entrench the principle of the public’s right to know and to foster a culture of openness in public institutions.

Recently, Canada celebrated the 25th anniversary of its Access to Information Act (Act).  While sound in terms of its concepts and balance, it is recognized that work is needed to modernize the Act from both legislative and administrative perspectives.  Changes to date have been modest but we are fortunate in that the debate on how best to achieve and sustain a progressive régime is ongoing.

It is within the context of the Canadian experience, as well as the issues identified on by the Parliamentary Assembly of the Council of Europe, that I wish to make the following observations regarding the proposed treaty:

  • Of primary importance is the necessity to enshrine in the treaty an explicit public right of access to information.  Canada’s Parliament chose to set out this right in our federal legislation in accordance with the principles that government information should be available to the public, necessary exceptions to the right of access should be limited and specific, and decisions on the disclosure of information should be reviewed independently of government.  The Act also provides that it is intended to complement existing procedures for access and not to limit access to information normally available to the public.  These principles have proven to be sound and the courts have consistently referred to the purpose clause in interpreting the Act.

  • Prescribing specific time limits and establishing incentives for responding to requests in a timely manner is critical.  There is a common expression that “access delayed is access denied”.  It is our experience in Canada that, in the absence of prescribed time limits and incentives, delays will become endemic.

  • Fundamental to access to information is ensuring there is the broadest possible coverage of public bodies.  The public has a right of access to information held by all publicly funded institutions and legitimately expects to exercise this right in order to render these bodies accountable.  This includes all branches of government – legislative, executive and judicial.  In 2006, the Canadian government passed the Federal Accountability Act which strengthened the Access to Information Act by expanding its coverage to all Agents of Parliament, including the Office of the Information Commissioner, all Crown corporations and their wholly owned subsidiaries, and several foundations.  However, coverage of the functions of legislative and judicial bodies remains a subject of review and discussion.

  • Although our federal legislation does not incorporate the provision, providing the review body with the power to order the disclosure of records has proven effective in jurisdictions within and in other countries.  Studies indicate that it expedites the complaint process and ultimately provides a more effective means of redress for complainants.

  • There are many interdependent components inherent in the principle of the right of access.  Given that the Convention represents a “minimum standard”, allowing states to enter reservations and deviate from it would seriously compromise the integrity of the fundamental principle, lead to an erosion of access rights and undermine the aim to achieve greater unity between members.  In a globalized world linked by the free-flow of information, inconsistencies of application result in confusion for the public.  While Canadians are privileged to have freedom of information acts in all jurisdictions, they are often frustrated by variations in legislations that have evolved during different times and at different rates.      

Adopting the positions put forward by the Parliamentary Assembly would significantly enhance the Convention on Access to Official Documents.  In my view, the Council of Europe has a unique opportunity to establish an access regime that will positively influence international standards now and in the future. 

Yours sincerely,

Robert Marleau
Information Commissioner of Canada

c.c. The Honourable Cannon
Minister of Foreign Affairs
Foreign Affairs and International Trade Canada
Ottawa, Ontario

  Mr. David Tilson, M.P.
Ottawa, Ontario

  H.E. Mrs. Ingrid Iremark
Ottawa, Ontario

  H.E. Mr. Louis de Lorimier