Update on the past year and what lies ahead

Presentation at the National Claims Research Workshop

by Nancy Bélanger, General Counsel and Director of Legal Services

October 4, 2016
Vancouver, British Columbia

(Check against delivery)

Thank you for the invitation, and to Mr. Di Gangi. It is a pleasure to be here. This presentation is in English but if there are francophones do not hesitate.

Introductions

As many of you will know, last week we celebrated Right to Know Week. September 28, 2016, has been traditionally recognized as International Right to Know Day. It has further been recognized by UNESCO as "International Day for the Universal Access to Information." This year we are celebrating the 250th anniversary of the first access to information law that was enacted in Sweden and Finland.

It is long established in Canada that access to information is a quasi-constitutional right.

The Supreme Court of Canada, in Ontario (Public Safety and Security) v. Criminal Lawyers' Association, 2010 SCC 23 concluded that, although the protection guaranteed by paragraph 2(b) refers to freedom of expression, access to information "is a derivative right which may arise where it is a necessary precondition of meaningful expression on the functioning of government."

This right exists independently from, and in addition to, the rights afforded by access to information regimes.

Access to information rights are key to a healthy democracy.

As Alasdair Roberts commented in a paper submitted to the OIC a few years ago, one of the key components of a healthy access to information regime must include a well-organized constituency of non-governmental stakeholders who identify and communicate the weaknesses in the law, monitor government backsliding on providing access, and recommend new innovations in law and best practices from other jurisdictions.

Many of you in this room, have fulfilled this role for many years, both at the provincial and federal level. I note for example the Joint Submission to the Standing Committee on Access to Information, Privacy and Ethics prepared by the Directors of Claims Research Units from Across Canada on the First Nations Experience with Access to Information.

Thank you for doing this. It is important and crucial that you continue to advocate for transparency and accountability. Charlie Angus, MP for Timmins-James Bay, told us last week about the number of requests he makes under the Access to Information Act to hold the government to account on their promises to indigenous groups, in particular with respect to promises made in relation to the education of the children. His experiences are a compelling testament to the important of access to information in Canada.

At the Office of the Information Commissioner of Canada, our work is to protect the access to information rights of Canadians.

There are a lot of exciting developments in our field of work.

I will go through some recent successes and what’s coming up that we need to watch for.

The past year and some successes

In recent months we have certainly seen a sea change from previous years.

In October 2015, we saw the election of a new federal government that campaigned on a platform of openness and transparency.

Shortly thereafter, the new government released, for the first time at the federal level, the mandate letters of all of the newly-appointed ministers.

The Minister of Justice and the President of the Treasury Board received clear direction from the Prime Minister. They are to bring forward legislation to amend the Access to Information Act, to extend the application of the Act to ministers’ offices, the administration of Parliament and the courts, and to provide the Commissioner with the power to issue orders.

In March 2016, Mr. Brison announced that reform of the Act would follow a two-phased process. The first phase would seek to introduce a bill to Parliament consistent with the mandate letters, with a few minor additions. The second phase would begin in 2018 and involve a more comprehensive review. Just last week, during a Right to Know event, he reiterated that a bill would be tabled in the winter and that this bill would respect the mandate letters.

In May, the Minister announced a new directive eliminating all fees except for the initial $5 application fee. This decision came following a Federal Court decision, Canada (Information Commissioner) v. Canada (Attorney General), 2015 FC 405 where it agreed with our position and ruled that the federal government could no longer charge fees for providing access to electronic records under the current regulations.

In the spring of this year, the House of Commons Standing Committee on Access to Information, Privacy and Ethics undertook a comprehensive review of the Act. The Committee was inspired in its work on the Commissioner Special Report to Parliament entitled Striking the Right Balance for Transparency which contained 85 recommendations to modernize the Act.

In June, the Committee issued its report on how to modernize the Act and it included 32 recommendations. It urged the government to move forward with an important series of recommendations in the first phase including:

Extending the scope of the Act
Establishing a legal duty to document with appropriate sanctions for non-compliance
Allowing institutions to refuse to process requests that are frivolous and vexatious requests
Providing information to requestors in an open, reusable and accessible format
Implementing time limited extensions
Abolishing the $5 fee – but reinstate fees for voluminous requests
Replacing all exclusions with exemptions
Implementing a public interest override with a non-exhaustive list of criteria
Adding a new provision for advice and recommendations
Amending the cabinet confidence exclusion
Giving the commissioner order making power, with a ministerial veto in matters of national security, subject to judicial review

The new government published its third action plan as part of the Open government partnership, and it included, as one of its commitments, the modernization of the Access to Information Act.

On the issue of delays, the Achilles heel of the federal access to information system, we had a precedent setting decision of the Federal Court of Appeal, Canada (Information Commissioner) v. Canada (Minister of National Defence), 2015 FCA 56 the extension provision of the Act was finally interpreted.

The concept of a reasonable extension was clarified by the Court and has led to much discipline among institutions. The Court clearly articulated that an unreasonable extension is invalid and is tantamount to a refusal of access. This has instilled much discipline in the taking of extensions. My office’s investigation of these files has been significantly simplified. At this time last year we had closed 226 files while this year we are at 333.

We also received a decision by the Federal Court, we call it the No-fly case, in which the Court made pronouncements on the proper exercise of discretion, Information Commissioner of Canada v. Minister of Transport Canada, 2016 FC 448.

The Court concluded that institutions cannot simply state that they have taken all the relevant factors into consideration when exercising discretion; they must concretely show that the factors were considered. They must also show that they carefully considered the arguments and factors in favour of disclosure, including the factors suggested by the Commissioner.

And last, but not least, the Office finally received additional funding for this fiscal year to tackle the large inventory of complaints. So far, we have completed more investigations this year than we did last year (997 compared to 507).

There has been a complete change in terms of collaboration, respect and willingness to resolve issues.

These are significant events and they deserve recognition.

What lies ahead this year?

First thing to watch for is the federal government’s response to the Committee which is expected to be tabled during by October 17. This will pave the way for the first phase of amendments to the Act.

Some important cases are also making their way through the courts.

First, the Fontaine et al. v. Canada (A.G.) et al. (SCC 37037) litigation.

The outcome of this case will impact some of our current investigations.

On August 6, 2014, Justice Paul Perell, in his role in supervising the administration of the Indian Residential Schools Settlement Agreement (IRSSA) determined that documents and, in particular, narratives of the abuse suffered by residential school survivors used in the adjudication of individual claims under the Independent Assessment Process (IAP) established by the IRSSA were not government records subject to federal legislation, including the Library and Archives of Canada Act, the Privacy Act or the Access to Information Act.

This matter was appealed. The Court of Appeal essentially agreed with this decision.

Last May, the Attorney General of Canada filed an application for leave to appeal to the Supreme Court of Canada. We are awaiting a decision on this application.

Another important litigation file is the Information and Privacy Commissioner of Alberta v. The Board of Governors of the University of Calgary (SCC 36460).

In this case, the University of Alberta challenged the Commissioner’s ability to review records over which a claim of solicitor client privilege had been made. The Alberta Court of Appeal agreed with the University’s position.

The Alberta Commissioner applied for, and was granted leave to appeal at the Supreme Court of Canada. The appeal was heard by the Supreme Court on April 1, 2016 and the matter is under reserve. Commissioners across the country intervened in this case.

We know that this exemption is regularly over applied. Without the ability to review the records, this exemption could become the next major loophole in our access laws.

Another important and interesting case is Defence Construction v. UCANU (A-414-15) which will be heard by the Federal Court of Appeal.

Defence Construction wanted to raise an additional mandatory exemption under section 24 of the Act that incorporates by reference section 30 of the Defence Production Act (DPA) five days before the hearing of the matter before the Federal Court. Section 30 of the DPA mandates that no information with respect to an individual business that has been obtained under or by virtue of the DPA, shall be disclosed without the consent of the person carrying on that business.

If validly raised, the exemption would serve to withhold all of the records at issue.

The Federal Court concluded that DCC was not entitled to rely on the additional statutory exemption to withhold the remaining records.

In September 2015, the government filed its Notice of Appeal before the Federal Court of Appeal. In December 2015, the Federal Court of Appeal granted the Commissioner intervenor status in the proceedings. The sole issue on appeal is whether an institution should be permitted to raise additional mandatory exemptions post-investigation.

The case will be heard in Ottawa on November 1, 2016 before the Federal Court of Appeal.

Closing Remarks

Canadians are becoming more interested in knowing what their government is doing and making access requests for information.

There is a shift in the system with an increase in requests coming from the public. We are seeing the same at the complaint level. The number of requests has doubled in the last few years.

Robust access to information is considered to increase competitiveness, innovation and efficiency by facilitating the flow of information between government, industry and citizens.

It is crucial to remember that this is the foundation. It is the backdrop against which we must measure the adequacy of our access to information laws, and our government’s performance in administering it.

So many things have changed since our ATI laws were first developed. We have new technologies, from paper based to main frames, to SMS messaging and cloud computing, and more.

We have new government structures, from centralized governments to special operating agencies, to quasi commercial entities, to crown corporations.

Our current laws fail to protect our information rights, and they do not strike the right balance between the people’s right to know and the government’s need to protect information.

In this new age of deliverology, will our governments deliver on their promises? Will we see concrete reforms that actually address the well identified shortcomings? The theme of your conference is fitting – is it just rhetoric or will we get resolution?

Although we have seen some significant developments in these past few months, the real reforms have yet to be presented to Parliament.

The real test lies ahead and we must continue to be engaged, to be vigilant and resilient, to hold our governments to account and insist that they properly protect our information rights.

Canadians want and deserve more.

Thank you.