The holes in the Access to Info system

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[Another election promise gutted by Trudeau. With Bill C-58, the federal government has left the heavy lifting on access to information reform for another day/year/government. *RON*]

Vincent Gogolek, Policy Options, 6 July 2017


It never bodes well when a government puts out a major piece of legislation late in the day, and Bill C-58 certainly met those lowered expectations when it came out a few weeks ago.

Transparency was a major theme for the Liberal Party of Canada, not just during the 2015 election campaign but well before it. Justin Trudeau put forward Bill C-613, An Act to amend the Parliament of Canada Act and the Access to Information Act (transparency), when he was leader of the third party in the Commons, so Bill C-58 is not something the Liberals produced on a whim.

In their 2015 platform, they promised these five things that would happen “to make government information more accessible” if they were elected. They would:
  • Ensure government data and information is open by default, in formats that are modern and easy to use, and update the Access to Information Act to meet this standard
  • Make it easier for Canadians to access information by eliminating all fees, except for the initial $5 filing fee
  • Expand the role of the information commissioner, giving that person the power to issue binding orders for disclosure
  • Ensure that access to information (ATI) applies to the Prime Minister’s Office (PMO) and ministers’ offices, as well as administrative institutions that support Parliament and the courts
  • Undertake a full legislative review of the Access to Information Act every five years
Bill C-58 shows the Trudeau government is looking to the next federal election by enabling themselves to claim “promise made, promise kept,” while ensuring that anything they want to keep out of the public eye is safely locked away.

Sadly, in doing so, the government largely passed over the unanimous in June 2016 recommendations of the Standing Committee on Access to Information, Ethics and Privacy (ETHI).

Bill C-58 does give the information commissioner the power to order government departments to release information, which is a good thing and long overdue. Unfortunately, it prevents the commissioner from looking at records if the government claims they are cabinet confidences, thereby allowing the government to stash away records it wants not to see the light of day. As the law now stands, if the government claims cabinet confidence, neither the information commissioner nor the Federal Court can even verify that the claim is valid. Bill C-58 does not change that, leaving intact the biggest black hole in the federal ATI system.

In a bizarre slight of hand, the PMO and ministers’ offices will be required to release certain types of information (travel expenses, contracts, etc.), but Canadians will still not have the right to request records that live in those offices. This is despite the fact that a number of provincial statutes have provided this right for decades without causing responsible government to collapse. As well, but the information commissioner will be prevented from reviewing these releases from ministerial offices.

A vital requirement for any government that claims to be transparent is the stipulation, in its ATI legislation, that government must document its own actions. The ETHI Committee recommended this, as have information commissioners from across the country, but the government declined to act. In fact, in Bill C-22, the national security oversight act passed in April this year, the government has introduced a provision allowing for “oral government.” Subsection 5(4) of that act states, “The appropriate Minister or officials of the department may appear before the Committee [ETHI] to provide the information orally.”

The ETHI Committee’s recommendation to get rid of the $5 fee charged to all requesters of information would expand transparency and save the government money, as each cheque costs the government more than $50 to process. The Liberals have already eliminated all fees except that $5, but the committee has opened the door to bringing back fees for requests that are “voluminous” or that require “lengthy research.”

Some of the measures laid out in C-58 were not Liberal election promises; some are good, some are not.

On the positive side, C-58 includes measures to ensure the commissioner has the power to examine records the government claims are subject to solicitor-client privilege. Timely action by the federal government was needed after a Supreme Court of Canada decision last year threw doubt on a number of ATI laws. The decision said that solicitor-client privilege could only be abrogated where legislation explicitly allowed it.

But the government has also given itself the power to refuse to respond to an information request that it deems to be” frivolous or vexatious,” i.e., that abuses the system.

The power to prevent such abuse is included in many ATI laws, but that power should rest with the information commissioner, not with the department that is subject of the request.

In fact, there are very few frivolous or vexatious requesters abusing the system. Between 2010 and 2015, British Columbia had more than 20,000 freedom of information requests, but public bodies made only 20 applications to the commissioner for the right to refuse to respond to such requests.

If the government is going to crack down on abuse of the system, it should look at jurisdictions that have introduced sanctions on public bodies that try to prevent the release of information. The types of sanctions imposed include monetary penalties on the department involved (New South Wales, Australia), automatic release of the requested information (Mexico) or sanctions on officials, thus unduly delaying release of the information (India).

This is not the last word on ATI reform, but it might be the last opportunity to weigh in for some time. C-58 includes a five-year review, but the first review will take place only a year after the legislation comes into force. Given the glacial pace at which legislation is going through Parliament these days, that could mean the review won’t take place until after the next election in 2019.

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