2013-2014 1. Access to information: An essential tenet of democracy
In a free society, individuals may engage with political leaders and question the government’s past and current activities. Such open and lively exchanges of information—on the hustings, through the press, and on websites, blogs and social media—are a hallmark of a thriving democracy.
But there is an information imbalance in these interactions, which access to information laws can help address. By requesting and receiving, under such legislation, information about government activities, the public can more effectively ensure federal institutions are transparent in their dealings and accountable for the decisions they make.
In this way, access to information keeps democracy on a solid footing in the present day, sheds light on the past and helps individuals in their dealings with government. Due to its importance to the functioning of a modern democratic society, the right of access in Canada has been described as quasi-constitutional. Footnote 1
Under the auspices of Canada’s freedom of information law, the Access to Information Act, the Information Commissioner strives to uphold the right of access by investigating complaints about federal institutions’ handling of requests for information. The cases the Commissioner investigates each year reflect the many roles the federal government plays in Canadian society and the myriad ways federal programs and services touch individual lives (see, “The full spectrum of access,” right).
As a result of the Commissioner’s interventions, requesters may get information from institutions more quickly than they otherwise would or have other administrative matters, such as the charging of fees, resolved. The outcome of the Commissioner’s investigations may also be that requesters receive more records than institutions were initially willing to release. The pages that follow highlight examples of instances when the Commissioner achieved such results for requesters in 2013–2014.
The full spectrum of access
From April 1, 2013, to March 31, 2014, the Commissioner closed complaints running the gamut of topics and concerns. Here are some examples:
- A man sought more information from Canada Post so he could understand how it had lost a number of his parcels.
- Another file involved a person who asked how much it cost to restore the word “Royal” to the names of the three branches of the Canadian Armed Forces.
- Pipelines and the energy sector were at the centre of multiple complaints, as were species at risk.
- An historian complained about the number of records Library and Archives Canada had withheld about the Estates General of French Canada, a series of three conferences held in the late 1960s to consult French-Canadian citizens on their place and political future in North America.
- An individual complained about the inordinate amount of time it was taking Foreign Affairs, Trade and Development Canada to answer a request for records about the resettlement of Palestinian refugees.
Ensuring timely access to information
When a parked freight train came loose from its moorings, rumbled downhill and crashed into the town of Lac Mégantic, Quebec, on the night of July 6, 2013, public attention was drawn to the unfolding tragedy and, soon after, to the role of Transport Canada in regulating railways. By March 31, 2014, Transport Canada had received more than 200 access requests on this subject.
Overwhelmed by this influx, Transport Canada access officials took time extensions ranging from 300 to 365 days (in one case, in combination with another 200-day extension) so that they had longer than the standard 30 days given by the Access to Information Act to respond to requesters. In light of the length of time they would have had to wait for their information, a number of requesters complained to the Commissioner. During the investigations of seven complaints completed in 2013–2014, it became clear that the extensions Transport Canada had taken were not valid. In some cases, the page volume was insufficient to justify extensions to search for and through records. In another, the extension was for consultations with other institutions that Transport Canada never undertook.
Consequently, the Commissioner asked Transport Canada to provide a firm date for responding to each of the seven requests, so that requesters could get the information they sought as soon as possible. Transport Canada agreed and provided dates. In all cases, the institution responded to each request on or before the deadline, resulting in requesters’ receiving a response significantly earlier than Transport Canada had initially proposed.
The key to achieving these results was early and sustained intervention by investigators from the Office of the Information Commissioner with the institution. This led the Commissioner to formally request from Transport Canada a work plan to complete each file and a reasonable deadline for doing so. The institution’s willingness to work with the Commissioner to resolve these complaints also contributed to the positive outcomes.
The aftermath of the Lac Mégantic incident is not the first time that an institution has found itself the subject of a surge in requests for information. Although these events in themselves are not foreseeable, many institution- or issue-specific surges in requests are. However, the Commissioner’s experience is that institutions do not always have the resources to absorb a sudden increase in requests. To address this, the Commissioner has recommended that the Treasury Board of Canada Secretariat (TBS), as the administrator of the access system, consider implementing measures that could help institutions that find themselves under-resourced in times of crisis. TBS, for its part, has begun to work with the Commissioner on developing such support for institutions.
Throughout 2013–2014, the Commissioner also received a number of similar groupings of delay complaints against Citizenship and Immigration Canada and the Canada Border Services Agency. Working with these institutions, the Commissioner resolved 161 of these complaints in a timely manner in 2013–2014. Others will be closed in 2014–2015.
Access performance at the RCMP
In 2012–2013, the Commissioner reported that the Royal Canadian Mounted Police (RCMP) was so understaffed that it was unable to acknowledge receipt of incoming access requests at all or as promptly as it should have, and provided requesters with an insufficient response letter (see, “Insufficient response”).
The Commissioner received 102 administrative complaints against the RCMP in 2013–2014, mainly relating to a failure to respond to requests in a timely manner. This was an increase of 46 percent over the previous year. To address these complaints, the Commissioner worked with the RCMP to address the insufficiencies in its response letters. She also negotiated commitment dates for responses in 13 cases, sending a formal letter to the institution for this purpose in 4. The RCMP met all of the dates to which it committed. In addition, senior officials met on several occasions to discuss the RCMP’s action plan. Although the RCMP did not give a copy of this plan to the Commissioner, the institution has been updating her on its progress. The Commissioner will continue to monitor the performance of the RCMP.
Facilitating maximum disclosure of information
In February 2011, a person turned to Correctional Service Canada (CSC) for information about the death of a close family member in a federal prison. The person wanted to see the report of the investigation CSC had carried out into the death, and filed a request under the Access to Information Act to get it.
CSC released a copy of the 94-page report in June 2011, but with substantial portions blacked out. The requester sought legal assistance to understand why the vast majority of the report had not been disclosed. In March 2012, the lawyer complained to the Commissioner, on behalf of her client, about the response from CSC. Footnote 2 In her letter, the lawyer noted that the requester was of the view that information might have been inappropriately or unnecessarily withheld.
An investigator from the Office of the Information Commissioner analyzed the portions of the report CSC had decided not to disclose. A dialogue ensued between the investigator and a CSC representative about whether these redactions were legitimate. In response to these exchanges and a formal letter expressing the Commissioner’s concerns about the institution’s application of exemptions under the Act, CSC reconsidered its position on most matters and released almost all of the blacked-out information. In the end, the requester learned just that much more about what had happened at the end of the family member’s life.
The Commissioner also closed a number of complaints in 2013–2014 against the Bank of Canada pertaining to Canada’s new polymer bank notes, including whether they melted, the apparent use of the image of an Asian woman on the new $100 bill, and the results of focus group sessions relating to the development and implementation of the notes. The majority of the 18 investigations dealt with allegations of improper use of exemptions under the Act to withhold information.
As a result of the Commissioner’s intervention, the Bank of Canada provided additional records to requesters in all seven of the refusal complaints the Commissioner closed by March 31, 2014. In some instances, the Bank issued several supplementary releases of records over the course of the investigation.
Overall, 54 percent of the 680 investigations that involved a refusal to grant access to records and that the Commissioner settled or completed with a finding in 2013–2014 resulted in institutions disclosing more information to the requester.
- Footnote 1
Dagg v. Canada (Minister of Finance),  2 S.C.R. 403. In certain instances, the right of access is also protected by section 2(b) of the Canadian Charter of Rights and Freedoms, which guarantees the right to freedom of expression.
- Footnote 2
The Commissioner initiated the complaint on the person’s behalf on compassionate grounds, since the 60-day deadline for submitting a complaint had passed.