2012-2013 4. Engaging with stakeholders
The Commissioner uses a variety of venues to work with partners and interested parties to help bolster the case for freedom of information in Canada and to promote the development of a leading access system. During 2012–2013, we made considerable use of our website and social media platforms such as Twitter to provide information to interested stakeholders and also to gather their views on access to information in Canada. With the benefit of this input, the Commissioner can offer to Parliament her unique and comprehensive perspective on national and international developments in the world of access to information. This, in turn, allows Parliament to carry out useful oversight of the access to information system in Canada.
Open dialogue on access to information
On Right to Know Day, September 28, 2012, the Commissioner launched a dialogue with Canadians about modernizing the federal access to information system—following in the footsteps of her predecessors and on the occasion of the 30th anniversary of the Access to Information Act.
The once state-of-the art legislation has fallen behind legislative innovations at the provincial and international levels. In the absence of any legislatively mandated review, the law has remained static; most calls for reform have not borne fruit. The Act is a quasi-constitutional piece of legislation that confers duties on government and ascribes rights to citizens. Legislation of this nature must continue to evolve.
In initiating the dialogue, we sought feedback on a variety of issues, including limits to the right of access and a possible awareness and education mandate for the Commissioner. We also asked specific questions about long-time concerns about the Act, such as the scope and coverage of the legislation and the potential role of penalties to respond to instances of non-compliance.
The consultation, which ran until January 31, 2013, yielded submissions from 44 groups and individuals—including two petitions with nearly 1,500 signatures—representing a broad spectrum of opinion and interest in access to information, both in Canada and internationally. We are analyzing the feedback, along with previous studies and recommendations for reform. This input, together with the in-depth knowledge gained from our investigations, will allow us to provide our unique and fully formed view on how the Act should be amended at this juncture and the benefits such changes would bring to transparency and accountability in the federal sphere. We will issue our reform proposals to Parliament in the fall of 2013.
Right to Know
To mark Right to Know Week, the Commissioner participated in a Twitter Chat on access to information issues and was a guest on CBC journalist Kady O’Malley’s weekly hour-long Web –based discussion with Canadians about the political issues of the day.
We also announced the winner of the second annual Grace-Pépin Access to Information Award.Darrell Evans of Vancouver was recognized for his many years of dedication and hard work to advancing the principles of access to information both in his home province and across Canada. The award is named in recognition of the contributions of John Grace, former Information Commissioner of Canada, and Marcel Pépin, President and founder of the Commission d’accès à l’information du Québec. The award will next be presented during Right to Know Week in September 2013.
In 2012–2013, the Commissioner issued four reports to Parliament: her reports on access to information and privacy activities for 2011–2012, her 2011–2012 annual report, and two reports on the results of multi-institution investigations into institutions’ overall performance. Each of these reports provides perspective to Parliament on our oversight role in the access to information system and our work to uphold the principles and right of access at the federal level. Our website contains a table of other Parliamentary activities—namely, bills, motions and other business—that has had or may have an impact on access to information in general and the Access to Information Act in particular.
Complementing these reports was an appearance by the Commissioner before the House of Commons Standing Committee on Procedure and House Affairs on November 22, 2012. This appearance was an opportunity for the Commissioner to contribute to the committee’s study of access to information and parliamentary privilege. This work was prompted by an access request to the Office of the Auditor General for records about the appearance of the Auditor General before parliamentary committees in 2012 and a subsequent application by the House of Commons for the Federal Court to review the institution’s proposed release of the records.
During her remarks to the Committee, the Commissioner noted that the Access to Information Act currently does not address the issue of parliamentary privilege, which raises a number of practical concerns (see box, below). In light of this gap, the Commissioner recommended that the best way to protect requesters’ rights, and to ensure transparency, accountability and effective oversight, would be to amend the Act to cover the administrative records under the control of Parliament while adding a specific exemption to deal with parliamentary privilege.
In its report, released in March 2013, the committee noted that there was some validity to the suggestion of amending the Act for the sake of clarity. However, the committee did not ultimately recommend such a step, since it would infringe on parliamentary privilege. Instead, committee members suggested classifying parliamentary information into various categories (public and accessible records, in camera records, those neither public nor in camera, and those prepared for parliamentary proceedings but never submitted), depending on whether they could be released to the public. The government’s response to this report is expected in 2013–2014.
Five issues at the intersection of access to information and Parliamentary privilege
- In the absence of a specific statutory provision for parliamentary privilege under the Act, there is currently no obligation for government institutions to consult Parliament prior to making a disclosure decision. This means that there is no way for Parliament to know whether information that could be protected under parliamentary privilege is being identified as such or released.
- There is no process for government institutions to determine who has the authority to invoke or waive parliamentary privilege.
- In the face of an assertion of parliamentary privilege, government institutions are faced with a dilemma because there are no specific exemptions or exclusions dealing with parliamentary privilege under the Act.
- If the assertion of parliamentary privilege is the basis for not releasing information to a requester, is the decision to refuse disclosure by a government institution a valid one under the Act?
- If the assertion of parliamentary privilege is the basis for not releasing information to a requester but the government institution uses other exemptions or exclusions to withhold the information, what is the impact on the requester’s rights? Would this information have been provided to the requester in the absence of the assertion? How does this impact on transparency and the ability of my office to effectively review government decisions to withhold information?
—Information Commissioner Suzanne Legault before the House of Commons Standing Committee on Procedure and House Affairs, November 22, 2012