New bill would boost information watchdog’s powers, reshape Access to Information Act
The Access to Information Act has been almost universally criticized as slow, out of date and riddled with provisions that enable agencies to cling to information.

TheStar.com
June 19, 2017
Jim Bronskill

The federal information watchdog would have the power to order release of government records under newly tabled legislation.

But the Liberal bill unveiled Monday doesn’t close loopholes that often keep files locked away and it backpedals on a campaign promise to fully apply the Access to Information Act to ministerial offices.

The legislation would place the burden of showing why a record must remain secret on the shoulders of the government or others who object, giving the information commissioner a stronger hand.

Currently the commissioner, an ombudsman for users of the access law, has to argue the case for release of government files.

The legislation also proposes extending the law — though only in a limited way — to the offices of the prime minister, cabinet members, senators, MPs and administrative institutions that support Parliament and the courts.

These offices and institutions would not be required to answer access requests filed by individuals, which most agencies and departments must do. Rather, they would be legally bound to regularly release certain types of records, such as hospitality and travel expenses and contract information.

The new, proactive publication requirements would apply to all institutions covered by the access law, though the type of documents that would have to be disclosed would vary. For example, ministers’ offices would be required to publish lists of briefing notes as well as materials prepared for parliamentary committee appearances.

The bill would also require a review of the access law every five years, with the first review to take place within a year of the legislation receiving royal assent.

The legislation would not narrow exemptions in the law that allow agencies to black out passages and deny the release of records — reforms that many transparency advocates have long demanded.

The Access to Information Act, which took effect in July 1983, allows people who pay $5 to ask for everything from internal federal audits and meeting minutes to correspondence and studies. Departments are supposed to answer within 30 days or provide valid reasons why they need more time.

However, the system has been almost universally criticized as slow, out of date and riddled with provisions that enable agencies to cling to information, including files more than half-a-century old.

In her recent annual report, information commissioner Suzanne Legault said the access law was being used as a shield against transparency.

Under the bill, the commissioner’s new powers would also allow her to issue orders related to fees, time extensions and the format of a release — for instance, on access to data in electronic spreadsheet format.

In addition, the legislation would:

• Require agencies to justify, with written reasons, why information is being blacked out;
• Allow government agencies to refuse to process access requests considered vexatious or in bad faith and allow the information commissioner to refuse to look into complaints on the same grounds.

Duff Conacher, co-founder of advocacy group Democracy Watch, applauded the moves to bolster the commissioner’s authority and require more routine disclosure of records.

But Conacher said more changes are needed to ensure “a transparent government that is open by default” since the bill does nothing to rid the law of “huge secrecy loopholes.”

The British Columbia Freedom of Information and Privacy Association said the bill leaves “black holes in the law that will prevent information from being released.”

The government had promised an initial wave of changes by the end of winter — what Treasury Board President Scott Brison called “early wins” on overhauling the antiquated law. In March, Brison’s office cited the complex nature of the task in delaying the Liberal plans.

A year ago, a House of Commons committee urged the government to go much further in reforming the decades-old access law, calling for steps to:

• Bring cabinet records — now completely excluded from access — under the law and reduce the 20-year period during which they are under wraps;
• Make purely factual or background information presented to cabinet and records of decisions accessible;
• Broaden access to bureaucratic advice and recommendations by ensuring they are withheld only when there is proof of injury to the government;
• Limit time extensions for answering requests beyond the 30-day limit to a maximum of 30 additional days, with longer extensions available only with the permission of the information commissioner.