Access to Information

Access to Information

Updates

9 May 2017 - On April 4, 2017, the Centre for Law and Democracy sent Prime Minister Justin Trudeau a letter, co-signed by 65 organizations and individuals, expressing their concern over delays in reforming the Access to Information Act.

The letter points out that no revised timetable accompanies the announced delay. It also reiterates that there is broad consensus in Canada regarding the need for reform of the outdated Act so as to put in place an effective and accessible ATI system. Transparency and fundamental Charter values, including freedom of expression, require fewer exceptions to ATI requests, broader coverage of the Act, including to Minister’s offices, and the ability of the ATI Commissioner to issue binding rulings.

The letter calls on the Liberal government to fulfill the promises it had made on this issue, while also questioning the legitimacy of the excuses for the delay, arguing the path forward is now clear. Critics claim the government is wavering on its campaign promise to modernize ATI law in Canada.

In a radio interview days later, Scott Brison defended the Liberal government’s commitment to open government and their record on the issue. He said that the government was committed to continuing to work towards reform but that it needed to balance all of the necessary considerations. He cited among these issues the independence of the judiciary, citizen privacy, and the neutrality of the public service as among the complexities causing the delay. The Centre for Law and Democracy maintains that while important, these issues have been analyzed repeatedly. Strategies to minimize negative impacts have been devised elsewhere and have been implemented internationally. As Toby Mendel, Executive Director of the Centre for Law and Democracy, noted: “Dozens of countries around the world have put in place the measures we are asking for without this having posed any threat at all to the interests the government claims is preventing it from moving forward.”

While the Liberal government continues to repeat its promise of action, the lack of tangible progress raises the concern about a repeat of the pattern of governments in power becoming increasingly reluctant to provide access to information despite their fervent promises to reform the legislation while in opposition. 


19 January 2017 - The Liberal election platform promised to make substantial changes to the Access to Information Act to modernize the process by making it cheaper, more accessible, and broader in scope. Given the age of the Act, they also promised to conduct a full legislative review every five years. Similarly, the mandate letter to Scott Brison, President of the Treasury Board, made reviewing the Access to Information Act and enhancing the openness of government among his top priorities upon taking office. The first time that the government really addressed the issue, however, was not until March 31, 2016 and it was not to announce the first step towards making the sweeping changes they had promised, but instead only to delay the initial legislative review until 2018. In its place, smaller interim changes were to be introduced over the course of 2016.

Ultimately, the government presented a list of eight initial proposals meant to “revitalize” the system and which went through an online public consultation process throughout May and June of 2016. The feedback from these consultations apparently demonstrated the desire of Canadians for greater access to government information and their frustration with the current system. The majority were supportive of the government’s initiatives, while some respondents voiced concerns about appropriate oversight for any increase in administrative powers.

The first change to the system came in the form of an interim directive announced on May 5, 2016, only days into the consultation process. The purpose of this directive was to implement two of the proposals, though it amounts to three actual changes. The directive waives all fees for information requests except the initial $5 application fee, changes the institutional mindset to make government “open by default”, and directs the departments to release information in the format requested.  

Though there have evidently been some improvements, there are still significant reasons for concern. Information Commissioner Suzanne Legault became quite vocal in October, 2016 criticizing the lack of any clear governmental commitment to act on their earlier promises. In particular, the revised timelines for the full legislative review is dangerous, as having a review start in 2018 may prevent the process being complete in time for any recommended changes to be implemented before the next federal election in 2019. Those changes that have been made thus far, including the waiving of fees and the “open by default” position, are viewed as tiny first steps. The current government's true commitment will be demonstrated through more substantive changes. These criticisms from Legault come after her special report of March 2015 that called for a complete overhaul of an information system that, she argues, has become an impediment to transparency, rather than a tool to facilitate it.

There was an expectation that new legislation would be forthcoming at some point this year [2016] or at least by early 2017 in order to implement additional changes, but nothing has happened yet. Significant actions would include allowing ATI requests to ministers’ offices and the Prime Minister’s Office, and providing the Information Commissioner with the power to force departments to disclose information. The recent Action Plan on Open Government 2016-2018 mentions legislation introducing new improvements to the Access to Information system, but once again provides no concrete timeline.

What Happened

The Harper government failed to fulfill its promise to reform Access to Information (ATI) to make government more accountable and transparent to Canadians. Instead, the ATI system is in crisis, with requests refused or delayed for extensive periods with no meaningful recourse. Information is withheld for political reasons, and media and Parliament have been effectively denied the information needed to function effectively.


Background

In 1983, Canada was one of the first of a dozen nations to adopt an Access to Information Act (ATIA). Even then, critics pointed out that it was not freedom of information (suggesting the citizens' rights to information collected by their government) but an access law, giving citizens the right to a procedure. The ATIA set out how Canadians could apply for government information and set a 30-day time limit for a response. It circumscribed what information was available, excluding cabinet documents and dozens of government agencies and Crown corporations.

The ATIA established an Office of the Information Commissioner (OIC) to ensure the procedures in the Act were followed, but it also declared that the commissioner could not compel the government to release information that the government wanted to keep secret—for a variety of reasons spelled out in the Act.

For the next two decades, politicians and officials, serving both Liberal and Conservative governments, used the ATIA to conceal, not provide, information. Requests were denied based on the claim that supplying information would compromise national security or third party privacy. Excuses for delays were legion, ranging from the need to consult other departments to the inability to find the information.

John Reid was Information Commissioner from 1998 to 2006. In 2000, Reid issued a blistering attack on the Liberal government of Prime Minister Jean Chretien for criticizing his office, threatening his staff, and creating huge backlogs in access requests. In subsequent reports Reid accused the government of destroying documents to prevent their release and trying to intimidate people who had legally requested information. At the time, journalists were seeking the release of hidden files related to what would become known as “the sponsorship scandal.” When those documents were released, exposing Liberal cronyism and kickbacks, the Liberals paid the price in the 2006 election, losing to the Conservatives under Stephen Harper.

In the run-up to that election, the Conservative Party platform contained eight proposed reforms of the ATI system that would fix the most glaring deficiencies. Harper went so far as to promise that all exemptions would be subject to a “general public interest override” and that he would invest the Commissioner with the power to order the release of government information based on that override.

However, the words of the Information Commissioner at the time would prove prophetic: John Reid commented that, “For the most part, officials love secrecy because it is a tool of power and control, not because the information they hold is particularly sensitive by nature."

In Harper’s first two years in office he not only failed to keep his promises but moved his government in the direction of more secrecy. Government officials invoked national security to restrict the dissemination of information concerning Afghan detainees that might implicate Canadians in the commission of war crimes. The number of stalled or refused ATI requests increased, as did wait times for responses.

The government ignored recommendations for reform from the House of Commons. It brushed off Robert Marleau, the Information Commissioner (Jan. 2007 – June, 2009), who proposed 12 reforms to the ATIA which he believed was badly outdated due to 26 years of "static decline." Before his early resignation from the post, Commissioner Marleau’s assessment of the Harper years was simple: "There's less information being released by government than ever before.”

The Conservative track record on Access to Information can be assessed under several criteria:

1. Performance

Under the Harper government, it has been harder than ever before to pry information out of the federal democracy – information that is essential to a functioning democracy. The current Information Commissioner, Suzanne Legault, in a 2010 special report deplored a “constant decline” year over year in government obligations to meet the 30-day maximum limit for response required by law. Delays in response are the “Achilles’ heel” of ATI, Legault warned, and the public’s right to government information is “at risk of being totally obliterated.” (See table.) The Commissioner’s 2012-2013 Annual Report noted further declines, indicated by a significant rise in complaints from the public: “This development is a sign of clear deterioration in the access to information system and indicates that institutions are having difficulty meeting even their basic obligations under the ATIA, such as adhering to the legislative deadlines for responding to requests or following proper procedures for taking time extensions.

The Information Commissioner also warned about new trends in what causes ATI delays. One trend is the growing practice of consulting other government departments. When the Harper government was elected (2006), there were 1,330 requests that each required more than 30 days’ of consultation with one or more departments, according to Dean Beeby of the Canadian Press. That number more than doubled over the next four years with 3,064 requests delayed by more than a month for such consultations. A second method of denying access to information is by declaring it to be a cabinet document, a practice that increased by 40% in the Harper years. “There are literally 500 ways of saying no,” according to ATI activist Ken Rubin. Rubin asserts that when it comes to sensitive issues like Afghanistan or climate change Ottawa has perfected the ability to generate black holes—nothing escapes.

Declining government performance can also be measured by how often all the information requested is released – or, conversely, how much is redacted or refused. A decade ago, in 1999-2000, the federal ATI system disclosed all the requested information 40.6 % of the time. By the time the Liberals went down to defeat to Harper’s Conservatives in 2006 that rate had already dropped to 28.4%. But then it plummeted by almost half. In 2009-2010, in only 15% of cases did citizens get everything they requested.

Access to Information performance

Year 1999-2000 2005-2006 2009-2010
Total number of requests 18,489 27,269 35,154
Percentage of responses that exceeded the 30-day time limit 36.8 41.4 43.9
Percentage of responses where all information was released 40.6 28.4 15.8
Number of requests denied because declared cabinet documents N/A 1,880 2,629
Requests requiring over 30 days of consultation with departments N/A 1,330 3,064

Sources: Infosource (Treasury Board), various years; Annual Reports of the Office of the Information Commissioner; remarks by Canadian Press reporter Dean Beeby for a Sept. 30, 2010, panel at Carleton University.

By 2012-13, the number of total requests had risen to 43,194, and the percentage of requests exceeding the 30-day limit was the same, at 43 percent.

The Harper government also put an end to a very useful ATI research tool. For decades, the government maintained a database, called CAIRS, to keep track of all information requests that had been answered.* If an ATI request had been returned to any individual requester the government was obliged to provide a copy of all the documents to any other citizen asking for it. And citizens could know what requests had been answered by using the CAIRS searchable database. By 2008, millions of documents were available with an addition 35,000 more coming available each year. On April 1, 2008, the government stopped updating the CAIRS database because Prime Minister Harper explained, it was "deemed expensive.”

2. Politicization

Under the Harper government there is evidence that ATI requests, especially from the media, have been delayed or censored due to considerations of political damage or embarrassment. The Canadian Press’ Dean Beeby reported in February 2010 that a federal cabinet minister’s aide had impeded the release of material – an act for which he had no legal authority. Under ATI, Beeby had asked for information on the extensive real estate portfolio of the department of Public Works. His request was tagged as sensitive, put into a purple-coloured folder, and

handed to Sebastien Togneri, a political aide to the minister, Christian Paradis. The department’s ATI officers decided they had no legal basis to withhold the information and ordered 137 pages released to the reporter. Then, at the last minute, Togneri sent an urgent email to a senior access official to “unrelease it” – and there was a rush to the mailroom to save the file from being delivered to media hands. Four months later Beeby received only a fraction of the information and it was heavily redacted.

The case came under investigation by the Information Commissioner. She found that there was evidence of a political vetting machine at Public Works and recommended that the case be referred to the RCMP. The act forbids anyone to “direct, propose, counsel or cause any person” to conceal a record, with a maximum penalty of $10,000 and two years in jail. The commissioner is also looking into similar allegations of political interferences in the access process at Foreign Affairs, National Defence and Public Works. While there is some evidence that the previous Liberal government also operated a system to politically “vet” ATI requests, it appears that the Harper government has created a broad culture of violating freedom of information rights.

3. Failure to Reform

The Federal Accountability Act of 2006 extended the Act to cover some previously excluded Crown corporations, Agents of Parliament, government-funded foundations, and the Canadian Wheat Board. However, almost a hundred federal institutions remain outside of the ATIA. In effect, of the Conservatives original eight promises, only part of one has been kept. Outstanding are the Harper campaign promises to eliminate the “black hole” of cabinet confidences, to empower the information commissioner to force disclosures, and to create a general public interest override for all exemptions so that the public interest is put before the secrecy of overnment.

A recent report published by the UK’s Government Information Quarterly compared the effectiveness of freedom of information laws in five Parliamentary democracies. Canada ranked dead last, thanks to its long delays and “outdated” policies. In particular, Canada’s system has not yet entered the digital age because citizens cannot file requests online and must mail in paper cheques to cover fees.

Finally, there are continuing concerns that the federal government is not committed to an essential part of freedom of information – the creation of records. Throughout the federal bureaucracy there are reports of meetings where minutes are not taken, of pin-to-pin messages being passed and of private email addresses for “going off-grid” being used. All these measures are taken to avoid ATI requests by preventing the creation of an information trail (thus giving a new meaning to the phrase “nothing to hide”).

4. Need for Open Government

In September 2010, Canada’s federal and provincial privacy and information commissioners met in Whitehorse and issued a resolution for “open government.” It is a plea for proactive disclosure of information in addition to – and perhaps, eventually, in place of the current reactive process of access to information petitions. The commissioners recognized the power of new information technologies, insisting that “information should be disseminated free or at minimal cost, and … should be provided in open standard formats that are adaptable and reusable…”

In the 2011 election campaign, the Conservative Party of Canada campaigned on a platform that included an “open government initiative” described as “part of our ongoing efforts to foster greater openness and accountability.” And yet that very election campaign was triggered when the Harper government was held in contempt of Parliament in part for refusing to provide information about the costs of programs such as its law-and-order legislation and corporate tax cuts. The government did not deny it possesses this information – just that it is a “cabinet confidence.” The Parliamentary Budget Office states that this information exists and is an integral part of the expenditure management system that costs out new programs. The government simply refused to release important information to Parliament and the public which appears to be a case of contempt not only for Canada’s democracy but also for the Conservatives own promises to make government more open, transparent and accountable.

*This analysis is based on the annual reviews by Canadian Journalists for Free Expression.

Relevant Dates:

  • 1983: The Access to Information Act comes into effect
  • April 1, 2008: The CAIRS database is no longer updated. Earlier data can be found here.
  • January 2011: Canada ranks last among five parliamentary democracies in freedom of information performance (Government Information Quarterly)
  • 2013: The Centre for Law and Democracy ranks Canada 56th out of 95 countries in terms of its right to information legislation.
  • 2013: The Information Commissioner warns of “clear deterioration” in the ATI system and that federal institutions are having difficulty meeting “even their basic obligations” (2012-13 Annual Report).

Role or Position

The Access to Information Act gives Canadian citizens the right to access information in federal government records.

Implications and Consequences

  • Transparency: A former leader in providing information, many observers believe that Canada’s access to information system is now in crisis, urgently in need of reform and political will to make it work.
  • Transparency: The Conservative government has yet to implement the great majority of the reforms promised in the 2006 election campaign and instead there is growing evidence that it has created a culture of secrecy.
  • Transparency: With the ATI system in crisis, and with reports that bureaucrats are increasingly avoiding their obligation to create records, Canadians risk having less and less information about the workings and decision-making of government.
  • Free Speech: Lack of transparency and access to information can inhibit Canadians' ability to effectively raise their voices and use their free speech rights to call for changes to government policies.
  • Transparency: Despite its many failings, the ATI system is still essential for exposing news-breaking stories, such as the sponsorship scandal and Afghan torture scandal. See: Notable Canadian News Stories Based on ATIA Requests.

Photo originally posted by jtutton

Date published: 01 June 2011

Date updated: 16 June 2014; 19 January 2017; 9 May 2017

Sources