Coming to Terms with Missed Opportunities and Charting a New Path for Access to Information
November 27, 2023
(Check against delivery)
I am very pleased to once again be here at the CAPA Annual Conference.
When we last met, the access to information system appeared to be at a turning point. It was the eve of the Government’s tabling of the Access to Information Review Report in Parliament.
This review had promised an examination of the legislative framework, opportunities to improve proactive publication, and exploring ways to improve service and reduce delays. As such, I thought that it could spell real change for the system if the Government proved willing to act.
I was optimistic that 2023 was going to be a big year for access to information.
After all, the Access to Information Act itself was about to turn 40. What better way to mark such a milestone than an announcement of a new bill with amendments designed to modernize the Act as it entered its fifth decade?
In addition, the Standing Committee on Access to Information, Privacy and Ethics (ETHI) had just launched its own study into the access system a few months before. I was hopeful that the Government would listen to the many voices seeking real change and calling for greater transparency.
2023: What Could Have Been
Unfortunately, the year that could have been… turned into the year that wasn’t.
In retrospect, perhaps the warning signs were already there.
When the Access to Information Act came into force 40 years ago, it was recognized as a forward-thinking progressive piece of legislation.
Clearly, the Act has not aged well: over time, successive governments have failed to bring in amendments that would have modernized it. It took until 2019 to introduce a few meaningful changes to the law.
While I recognized this as a step in the right direction at the time, I never viewed it as more than a first phase. Little did I know that those initial steps down the path of legislative reform in 2019 would be the last such steps taken for a long time.
Shortly after we met last year, the Government tabled its long-awaited report on the review of Access to Information. While I could use any number of adjectives to describe how I felt, I’ll leave it at “disappointed.”
The report made no recommendations to Parliament for fixing the Act. In fact, it only went so far as to identify several already known facts about the status of the access to information regime and to propose possible avenues for further exploration.
Empty words without concrete actions left us no better off. We are still dealing with a system that denies Canadians the right to access their information.
Nevertheless, over the past twelve months, I have continued to advocate for meaningful change.
In my recent submissions and appearances before the ETHI Committee, I advocated for three changes that are required to fix the system.
The first is updated legislation. I continue to believe that this is required as the foundation of an access system that reflects the technologies and work methods of this day and age.
Second, a change in culture. Even the best legislation will never work if government leaders do not commit to making access a priority within institutions, setting the example with clear objectives, and a drive for innovation and transparency.
Finally, investment is needed in the resources, tools, training, and technology required to support the system.
When the ETHI Committee tabled the final Report on its own study this past June, it served as a counterpoint to what the Government had put out a few months earlier. It was clear that a great deal of care and deliberation went into the crafting of the ETHI report.
The committee’s study resulted in 38 recommendations, many of which aligned with my own. It also proposed important measures in line with findings from my systemic investigations, such as the need for Canada to establish a declassification program.
So, it was more than disappointing when this past October, the Government put forward a response to the report that essentially said, “not now, maybe later”.
The Government having ruled out further amendments, we can only hope that it will follow through on its commitment tackle the most urgent operational and administrative challenges of our access to information system.
While we await the next legislative review in 2025, I anticipate that Canadians will continue to face challenges in accessing the information that belongs to them.
Lessons Learned from a Challenging Year: The Importance of Access to Information
All of this is happening against the backdrop of declining trust in public institutions.
Last year, the Organisation for Economic Co-operation and Development published its findings from the “Trust Study” conducted in 22 countries. It revealed that almost 40% of Canadians have low, or no trust in their national government.
Governments are judged by the specific actions they take and how these actions impact its citizens. When decisions are made without proper transparency, suspicions naturally arise, leading to misinformation and disinformation.
If you’ve ever read the Washington Post, you’re probably familiar with the paper’s official slogan – “Democracy dies in darkness.” This motto serves as an apt reminder as to why everyone should care about access to information.
Access to information plays an essential role in holding governments accountable, be it ordinary citizens, advocates, or the media exercising this right. It is a critical tool for the journalists whose very job is to keep Canadians informed. If the system is not working, we suffer as a society.
Since October 2022, the Globe and Mail has been investigating and publishing pieces on Canada’s decaying access system through their aptly named Secret Canada series.
The series is showing Canadians how the deterioration of this quasi-constitutional right is affecting journalists’ ability to inform Canadians of the events that have and continue to shape this nation.
Even if Canadians don't have firsthand experience with the system, its decline inevitably affects them.
If your ability to stay informed depends on the journalist accessing information on your behalf, this ability is in peril, and your "right to know" is not being respected.
Through the complaints submitted to my office, I can see what requesters are looking for.
- They seek clarity regarding immigration applications.
- They want to know what happened to their loved ones who passed away while in police custody.
- They are pursuing truth and reconciliation for their communities.
- They strive to understand the past of our country.
- They are interested in knowing how their money is spent by the Government and why they don’t receive the services that they feel they are entitled to.
These are not trivial matters. They are matters of vital importance to many Canadians.
The OIC’s role
So, what do we do now?
Even with the limitations and obstacles facing us, we need to strive to do what’s in our power to ensure that Canadians receive the information that is rightfully theirs.
My Office is doing its part through:
- the investigations we conduct;
- the systemic investigations I initiate to understand the root cause of barriers to access; and
- the orders I issue and sometimes have to defend in court.
Regarding my orders, the Act provides that they must be complied with or challenged before the Federal Court. Lately, we have been noticing an increase in litigation. It is still early to tell whether it is a trend that will be sustained over time.
Each year, the OIC conducts a significant number of investigations involving historical documents. Some findings show that redactions made under the national security exemption are often applied too broadly, as well as based on the document’s classification rather than its contents.
I am proud to say that these investigations have resulted in significant disclosure of historical documents long sought after by academics. But clearly, much remains to be done, as shown in a November 10th story in the Globe and Mail on historians’ frustration with the system. That’s why in the coming months I will continue to press the Government on the need for a declassification framework.
My office also continues to make progress against our inventory. While we recognize that the system goes through cycles, we have noted a decline in the number of complaints we have received in recent months, and are using this opportunity to deal with some of the many challenging files remaining in the inventory.
In addition, over the course of the past year, an independent evaluation of our investigations program was conducted from the perspective of institutions subject to the Act.
The input from institutions has been used to make improvements to our investigation processes. For example, we have modified our summary of complaints we send to both the institution and the complainant to better describe allegations. We have also published additional guidance on our processes on our web site.
We are now seeking input from complainants on our investigations to better understand their needs and how the OIC can bridge any identified gaps. An independent third party is overseeing the process, ensuring complainant input remains confidential.
We intend to use the aggregate and anonymized data to further improve the way we operate.
I hope some of you have taken part in either of the consultations. But even if you haven’t, we are happy to receive your feedback anytime. We are always seeking ways to improve.
The Path Forward
Last month, I joined with my provincial and territorial counterparts to issue a resolution urging our respective governments to act swiftly and decisively in modernizing laws, policies, and information management practices while we were gathered in Quebec City for our annual conference.
Our resolution states that access to reliable information is critical for maintaining confidence in democratic institutions and countering the negative effects of misinformation. It called upon governments to also make use of alternate mechanisms for providing access to records, including through proactive disclosure.
Our shared goal is to enable all Canadians to better understand the nation's past and present, fostering a culture of transparency and supporting a path towards reconciliation.
It is an important message, so I repeat it here today. I am urging leaders to take decisive action to address the issues across the system in order to uphold the fundamental right of access.
And I strongly encourage Canadians to hold their government to account for its performance in the area of transparency and access to information.
Although the landscape may seem bleak, all of us – ATIP professionals, journalists, academics and Canadians seeking information from their government – we must all keep asking questions, submitting access to information requests and complaints, and continuing to press for meaningful change across the system.
For my part, I have less than 18 months remaining in my tenure as Canada’s Information Commissioner. During this time, I will continue to promote the changes that are essential to improving the system.
Through my investigations, my orders, the legal actions I take, and my reports to Parliament, I will do whatever I can to ensure that the current Access to Information Act, with all of its shortcomings, is respected.