Background on the Office of the Information Commissioner of Canada and proposals for reform of the Access to Information Act

The Office of the Information Commissioner of Canada is an independent public body created in 1983 under the Access to Information Act (the Act). The office’s primary responsibility is to conduct efficient, fair and confidential investigations into complaints about federal institutions’ handling of access to information requests. The office strives to maximize compliance with the Act while fostering disclosure of public sector information using the full range of tools, activities and powers at the Commissioner’s disposal.

The Office of the Information Commissioner primarily uses mediation and persuasion to resolve complaints. In doing so, the office gives complainants, heads of institutions and all third parties affected by complaints a reasonable opportunity to make representations. The office encourages institutions to disclose information and to respect Canadians’ rights to receive information, in the name of transparency and accountability. The office brings cases to the Federal Court to ensure the Act is properly applied and interpreted.

The office also supports the Information Commissioner in her advisory role to Parliament and parliamentary committees on all matters pertaining to access to information. The office actively makes the case for greater freedom of information in Canada through targeted initiatives such as Right to Know Week and ongoing dialogue with Canadians, Parliament and federal institutions.

Studies and legislative changes

There have been reform initiatives since shortly after the Act came into force in 1983. This document contains a list of key documents that have studied the Act with a view to reform. These documents may be categorized under the general themes of Parliamentary review, proposed legislative reforms and government and private member’s bills.

1986: Standing Committee on Justice and Solicitor General review

The only statutory review of the Act was conducted in 1986. This statutory review was required under subsection 75(1) of the Act and was undertaken by the Standing Committee on Justice and Solicitor GeneralFootnote1. Although the Act requires that the administration of the legislation “shall be reviewed on a permanent basis” by a Parliamentary Committee, there have been no subsequent comprehensive statutory reviews of the Act.

1987: Open and Shut: Enhancing the Right to Know and the Right to Privacy

In 1987, at the close of their statutory review, the Standing Committee on Justice and Solicitor General issued a comprehensive report entitled, Open and Shut: Enhancing the Right to Know and the Right to PrivacyFootnote2. The report concluded that the Act had “major shortcomings and weaknesses.” The committee recommended, amongst other things, that the Act cover all federal government institutions, including all administrative tribunals, Parliament and Agents of Parliament, that Cabinet confidences no longer be excluded from the Act and that the Commissioner have order-making power for certain administrative issues.

1987: Access and Privacy: The Steps Ahead

In 1987 the government responded to the committee in its reports titled Access and Privacy: The Steps AheadFootnote3. While the government agreed with some of the committee’s recommendations, no amendments were made to the Act as a result of the legislative review.

2002: Access to Information: Making it Work for Canadians

In June 2002, the Access to Information Review Task Force issued its report entitled, Access to Information: Making it Work for Canadians (more popularly known as the Delagrave Report after the Chairperson of the Task Force)Footnote4. The Task Force was mandated with reviewing the Act. The comprehensive report made 140 recommendations for legislative, administrative and cultural reform at the federal level. It was hoped that the report would “provide a blueprint for renewal that can realistically be achieved and maintained.”

2002: Special Report on the Access to Information Review Task Force

In September 2002, then Information Commissioner John Reid responded to the Access to Information Review Task Force in his Special Report on the Access to Information Review Task ForceFootnote5. The Special Report was critical of many recommendations made by the Task Force.

2005: A Comprehensive Framework for Access to Information – A Discussion Paper

Since the Report of the Task Force was issued, few of its recommendations have been implemented or pursued further by way of legislative amendment. In 2005, the department of Justice Canada drafted a report titled A Comprehensive Framework for Access to Information – A Discussion PaperFootnote6. That document studied recommendations from the Task Force, reports from Information Commissioners of Canada, Private Members’ Bills, and international sources, among others. The report stated that the “Government of Canada agrees that the Act must be modernized” and that any amendments should be forward-looking, able to withstand changing circumstances, and effective for many years to come. The government presented the Standing Committee on Access to Information, Privacy and Ethics with its paper for full and deliberate consideration before moving towards legislative reform.

2005: Tabling of draft bill entitled the Open Government Act

In 2005, a draft bill, entitled the Open Government Act, was tabled before the Standing Committee on Access to Information, Privacy and Ethics. Developed by Information Commissioner John Reid at the request of the Standing Committee, the draft bill included substantial changes to the law. A primary objective was to address concerns about a “culture of secrecy” within political and bureaucratic environments.

2006: Federal Accountability Act passed in the House of Commons

In 2006, the government passed the Federal Accountability Act which made several amendments to the Act. Changes included codifying the “duty to assist” requesters and expanding the coverage of the Act, notably to remaining Crown corporations and their subsidiaries and Agents of Parliament. The Federal Accountability Act also added a number of exemptions and exclusions to the Act, mostly for specific institutions.

2006: Strengthening the Access to Information Act – A Discussion of Ideas Intrinsic to the Reform of the Access to Information Act

In that same year, Justice Canada published a report Strengthening the Access to Information Act – A Discussion of Ideas Intrinsic to the Reform of the Access to Information Act (2006). This report offered comments on draft bill and some alternative approaches for consideration.

2006: Response to the Government’s Action Plan for Reform of the Access to Information Act

In April 2006, Information Commissioner Reid tabled a Special Report to Parliament Response to the Government’s Action Plan for Reform of the Access to Information ActFootnote7.The special report was critical of the government’s commitment to reform the Act since many of the key reforms which the government had promised to enact failed to find their way into the Federal Accountability Act and some of those reforms that were included in the Federal Accountability Act were detrimental to the right of access.

2009: Strengthening the Access to Information Act to Meet Today’s Imperatives

In 2009, Information Commissioner Robert Marleau tabled his report Strengthening the Access to Information Act to Meet Today’s ImperativesFootnote8. That report concluded that, while it is recognized that the Act is sound in terms of its concept and balance, work is urgently needed to modernize it from a legislative perspective and to align it with more progressive regimes both nationally and internationally. The report made 12 recommendations aimed at enhancing access to information.

2009: The Access to Information Act: First Steps Towards Renewal

In the same year, the Standing Committee on Access to Information, Privacy and Ethics responded to the Commissioner in its report The Access to Information Act: First Steps Towards RenewalFootnote9. After consideration, the Committee supported the majority of these recommendations.

2015: Striking the right balance for transparency – Recommendations to modernize the Access to Information Act

In 2015, the current Information Commissioner of Canada tabled her report Striking the right balance for transparency – Recommendations to modernize the Access to Information ActFootnote10. The document contained 85 recommendations that propose fundamental changes to the Act that would resolve recurring issues and strike the right balance for transparency.

Annual reports of Information Commissioners

By way of Annual Reports to Parliament, Information Commissioners have suggested throughout the years many reform proposals. In 1993, Commissioner Grace put forward the “case for reform” of the Act in light of rapid advances in technologyFootnote11, namely computerized records. In 1994, Commissioner Reid crafted a blueprint to reform a “very good law” that had five major weaknesses, including transforming the Cabinet Confidence exclusion and closing the gaps in the Acts coverageFootnote12. Reform of the Act has been a recurring theme throughout all of this Commissioner’s annual reports.

Private Member’s bills

While the above studies and reforms were being conducted, many Private Members’ bills have been introduced. These bills have ranged in scope from amendments to particular provisions of the Act to sweeping reform measures.

Examples of recent Private Members’ bills that proposed amendments to the Act include:

  • Bill C-201, An Act to amend the Access to Information Act (Open Government Act) 1st Session, 38th Parliament
  • Bill C-554, An Act to amend the Access to Information Act (Open Government Act) 2nd Session, 39th Parliament
  • Bill C-556, An Act to amend the Access to Information Act (Improved Access), 2nd Session, 39th Parliament
  • Bill C-461, An Act to amend the Access to Information Act and the Privacy Act (Disclosure of Information), 1st and 2nd Session, 41st Parliament
  • Bill C-567, An Act to Amend the Access to Information Act (Transparency and Duty to Document), 2nd Session, 41st Parliament
  • Bill C-613, An Act to amend the Parliament of Canada Act and the Access to Information Act (transparency), 2nd Session, 41st Parliament

Information on the above documents can be obtained by contacting Michael Ricco at 819-994-1135.

Footnotes

Footnote 1

Review by a committee designated by Parliament
(2) The committee designated or established by Parliament for the purpose of subsection (1) shall, not later than July 1, 1986, undertake a comprehensive review of the provisions and operation of this Act, and shall within a year after the review is undertaken or within such further time as the House of Commons may authorize, submit a report to Parliament thereon including a statement of any changes the committee would recommend.

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Footnote 2

Reference, see fnb 6 page 103

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Footnote 3

1987, Cat. No. J2-73/1987; ISBN 0-662-55472-8

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Footnote 4

June 2002, Cat. No. BT22-83/2002-MRC; ISBN 0-662-66665-8

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Footnote 5

Special Report to Parliament, Cat. No. IP4-1/2002; ISBN 0-662-66765-4

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Footnote 6

Ref; pages 1-3, 31

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Footnote 7

Cat. No. IP4-2/2006; ISBN 0-662-49216-1

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Footnote 8

Appendix C - Strengthening the Access to Information Act to Meet Today’s Imperatives

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Footnote 9

The Access to Information Act: First Steps Towards Renewal

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Footnote 10

Striking the right balance for transparency – Recommendations to modernize the Access to Information Act

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Footnote 11

Case for Reform

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Footnote 12

Annual Report - Information Commissioner 2000-2001 (PDF)

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