2013-2014 4. Promoting access
The Commissioner promotes access to information in Canada through ongoing dialogue with Parliament, government institutions and Canadians, and through initiatives such as Right to Know Week.
Right to Know
As part of the 2013 celebration of Right to Know Week, the Office of the Information Commissioner hosted, in conjunction with the University of Ottawa’s Faculty of Civil Law, a conference on access to information. The event—held on Right to Know Day, September 28—brought together more than 130 people for panel discussions featuring access to information practitioners, government representatives, journalists, academics and lawyers. The panels addressed current issues in the world of access, including building a model Canadian access law and developing international standards for transparency. (The panels were recorded for broadcast by CPAC and have been archived for viewing on the channel’s website.) The conference also marked the university’s annual Germain Brière Day, established in 2008 to honour the memory of a professor in the Faculty of Civil Law who had an abiding interest in transparency and accountability.
The Commissioner gave the keynote address at the conference. She also presented the annual Grace-Pépin Access to Information Award. The 2013 recipient was the Canadian Access and Privacy Association. The association promotes professional development among its members and engages in public education about information rights.
Canada’s first Information Commissioner, Inger Hansen, died on Right to Know Day, September 28, 2013, at the age of 83. Born in Denmark in 1929, Ms. Hansen immigrated to Canada in 1950 and subsequently practised law in British Columbia. She was appointed Canada’s first Privacy Commissioner in 1977 and became Information Commissioner in 1983. She held the latter post until 1990.
Dialogue with stakeholders
The Commissioner continued her series of semi-annual meetings with institutional access to information coordinators, with a second session in the fall of 2013. These meetings, in which the Commissioner, Assistant Commissioner and other senior officials participate, have been received positively by the access community as a forum for discussing priorities, sharing information about the Commissioner's investigation process and expectations, and getting feedback from institutions on possible improvements.. Another session is scheduled to take place in the late spring of 2014.
To extend the dialogue to complainants and other stakeholders, the Commissioner will post a survey on her website in 2014 asking for feedback from Canadians on how to improve service to complainants.
The Commissioner also takes opportunities to share her views with the government on various access-related issues. In September 2013, for example, she wrote to the President of the Treasury Board, the Honourable Tony Clement, to reinforce the need for the government to modernize the Access to Information Act as part of Canada’s commitments under the international Open Government Partnership.
At an October 2013 meeting, the Commissioner and Mr. Clement discussed ways to improve the performance of the federal access to information system. The topics discussed included the performance of the 20 institutions that account for roughly 90 percent of the access requests received each year, the ongoing shortage of access to information professionals, and the need for institutional leadership to ensure maximum compliance with the Act. The Commissioner wrote to Mr. Clement in April 2014 to provide further insights on these and other issues.
The Commissioner was also a signatory to a joint resolution from Canada’s access and privacy commissioners urging the government to modernize the respective laws in the face of dramatic technological change and the demands of engaged citizens.
Finally, the Commissioner published, on her website, a summary of the submissions she received as a result of her consultations on modernizing the Access to Information Act. This input has informed the Commissioner’s report on legislative reform, which will be published in the fall of 2014.
The Commissioner welcomes improvements that facilitate access to information, including the advent of electronic request submission forms. Currently, 21 institutions are taking part in a Treasury Board of Canada Secretariat (TBS) pilot project to accept access requests online. However, these developments must not go against the spirit or letter of the law, in the name of efficiency.
In April 2013, a requester made a request to TBS using the online request form. In order to submit the form, the requester had to choose an option for “category of requester” (e.g. media, member of the public). There was no option to leave the field blank or insert “no answer.” The requester complained to the Commissioner about this situation.
While institutions are required to provide TBS with statistics about the categories of requesters, the Act does not require requesters to identify whether they fall within a specified category. In fact, the duty to assist set out in the Act stipulates that institutions must process requests “without regard to the applicant’s identity.”
In response to the Commissioner’s investigation, TBS committed to modifying its online form by adding a “decline to answer” option. It will also amend the paper version of the form accordingly.
In 2013–2014, the Commissioner issued five reports to Parliament:
- access to information activities for 2012–2013
- privacy activities for 2012–2013
- 2012–2013 annual report
- special report, Access to information at risk from instant messaging
- special report, Interference with access to information: Part 2 (April 10, 2014).
These reports provided perspective to Parliament on the Commissioner’s oversight role in the access to information system, her work to uphold the principles and right of access at the federal level, and various aspects of the operations of her office. The Commissioner’s website contains a table of other Parliamentary activities—namely, bills, motions and other business—that had or may have an impact on access to information in general and the Access to Information Act in particular.
Appearances before parliamentary committees
The Commissioner made four appearances before parliamentary committees in 2013–2014.
In April 2013, she presented two annual reports (2010–2011 and 2011–2012) to the House of Commons Standing Committee on Access to Information, Privacy and Ethics (ETHI).
During an appearance before ETHI in May 2013, as part of the Main Estimates process, the Commissioner spoke about her recent achievements, priorities for the coming year and some of the challenges her office faces.
Later that same month, the committee invited the Commissioner to appear on Bill C-461. This private member’s bill proposed to repeal section 68.1 of the Access to Information Act. This provision excludes information relating to the Canadian Broadcasting Corporation’s (CBC) journalistic, creative and programming activities. The bill proposed to replace that exclusion with an exemption that would allow the CBC to withhold records that could reasonably be expected to prejudice the “journalistic, creative or programming independence” of the CBC. In her remarks, the Commissioner noted that the proposed amendments reflected what she had suggested when she appeared before the committee in October 2011, during its study of the Commissioner’s access to information dispute with and resulting court actions concerning the CBC. The bill was removed from the order of precedence in the House in March 2014. (See Chapter 2 for information about the Commissioner’s work closing complaints against the CBC, including the three instances in 2013–2014 when she agreed with the institution’s application of section 68.1.)
Finally, in November 2013, the Commissioner appeared before the House of Commons Standing Committee on Procedure and House Affairs as part of its review of the Board of Internal Economy, the governing body of the House of Commons. In her remarks, the Commissioner spoke in favour of extending the coverage of the Access to Information Act to the administration of Parliament, rather than simply relying on proactive disclosure rules to increase that institution’s accountability and transparency, particularly with regard to parliamentarians’ expenses (see, “Bringing Parliament under the Access to Information Act,” right, for a excerpt of the Commissioner’s remarks). The committee issued its report in December 2013, declining to recommend that the Act be amended to cover Parliament. Instead, the committee noted that the “level of proactive disclosure already available is sufficient for the transparency and accountability of the House and its Members.”
Bringing Parliament under the Access to Information Act
“During the hearings thus far, there has been a lot of discussion on proactive disclosure and whether or not the new rules set out by the Board of Internal Economy are sufficient.
In my view, proactive disclosure of expenses is a necessary step to making detailed information available to the public. Consistent proactive disclosure can be done in a detailed way, in an open, accessible and reusable format, on a regular cycle, and in a timeframe that preserves the relevance of the information.
So proactive disclosure is a good thing. However, it isn’t enough. In order to promote trust in public institutions, there is not only a need to increase the availability and the quality of information, but also to ensure access to that information.
Citizens want to be able to validate the information that is provided to them, or to obtain more details about an issue of interest or simply know that the right is there for them to exercise when needed.
Bringing Parliament under the Access to Information Act, with appropriate safeguards, would guarantee that right.”
—Information Commissioner Suzanne Legault before the House of Commons Standing Committee on Procedure and House Affairs, November 2013
Joint letter on Bill C-520, the Supporting Non-Partisan Agents of Parliament Act
In February 2014, the Commissioner was a signatory, along with six of her fellow agents of Parliament, on a letter to the chair of the ETHI committee on Bill C-520, a private member’s bill that seeks to avoid conflicts that may arise or could be perceived to arise between partisan activities and the official duties and responsibilities of an Agent of Parliament or one of its employees. The letter set out several matters the agents of Parliament wished to bring to the committee’s attention about the bill. The Commissioner provided further written information to the committee on May 7, 2014, prior to the clause-by-clause consideration of the bill.