Bringing Canada’s access to information back from the brink

Canada’s once world-leading access to information regime is in a crisis. So what are the politicians planning to do about it?

Thestar.com
Sept. 11, 2015
By Alex Boutillier

Canada’s access to information regime is beset by record numbers of complaints, by delays, and by barriers between the public and the data their government collects.

So how did the one time world-leading system “erode” to the point of protecting government secrets rather than bringing them to light, as Ottawa’s information watchdog recently said?

And what are political parties promising to do about it?

The Liberals have announced the most robust plans for access reform so far in the marathon election campaign. Leader Justin Trudeau has promised to make government information open by default, increase the access to information watchdog’s powers, and require a mandatory five-year review of the Access to Information Act.

The NDP have previously pledged to expand access to the houses of Parliament, as well as give the information commissioner the ability to compel the release of documents. The party says it will have more to say on transparency before Oct. 19.

The Conservatives, after a decade in power, admit that the 1983 Access to Information Act needs to be updated. But they have not committed to doing so, and point to the 2006 Accountability Act as their record on government transparency.

While access to information may not be the biggest vote-mover when it comes time for Canadians to cast their ballots, it goes to the heart of what every politician wants to promise on the hustings - transparency and accountability.

The system allows anyone to write a $5 cheque to the government and request any document that its departments and agencies hold. The system is used predominantly by private citizens and businesses, but also journalists, researchers - even government agencies themselves.

In 2009-10, the federal government logged 35,154 new access requests. That number nearly doubled in five years, to 60,105 requests in 2013-14.

But Michel Drapeau, a lawyer specializing in access law, doesn’t believe the system is suffering due to the increase in volume. Drapeau instead places the blame squarely on the “centre” of the government - the Privy Council Office, the department that supports the prime minister - and department’s willingness to run requests by them.

“To claim a delay becomes now not the exception but the normal course of events,” Drapeau said in an interview last week.

“Access to information is on a slow descent into irrelevance.”

There have been signs that the strain on the system is taking its toll. Summer students and temporary workers are being brought in to deal with “surges” in requests, which typically occur around a big news story. The situation lead one senior access officer to report a “critical shortage” of qualified staff to her superiors.

At the same time, the Conservative government has boasted of a record number of pages released to the public. The government repeatedly pointed to the volume of material released as a sign the system was healthy.

But according to Treasury Board data, only 27 per cent of those requests were “all disclosed” - uncensored - in 2013-14. A further 50 per cent were disclosed “in part,” which includes everything to documents with one line censored and records almost entirely blacked out.

Over their time in power, the Conservatives have made strides towards “open data,” releasing information and datasets collected by federal departments as a matter of course. While most of the files released to date are mapping files from Natural Resources Canada, several departments have released substantial files that can be accessed through the open.gc.ca portal.

But Teresa Scassa, a University of Ottawa professor who served on the federal open government advisory committee, said the government is less likely to voluntarily turn over sensitive or controversial documents - and that’s where access to information comes in.

“These are data sets that are useful to the private sector,” Scassa said of the government’s open data efforts to date.

“And that’s more the orientation of it rather than transparency or accountability, the kinds of things that journalists go after for example when they’re looking to see how governments are dealing with certain kinds of (issues).”

Information Commissioner’s Recommendations

In March, Information Commissioner Suzanne Legault released a comprehensive list of 85 recommendations to overhaul Canada’s access to information system. Broadly speaking, they include:

Maximize Disclosure - Overhaul exemptions that prohibit disclosure, create a public interest override, create a statutory obligation to declassify material.

Reduce delays - Limit extensions by government to a maximum of 60 days, limit internal consultations with other government agencies.

Expand coverage - Expand the institutions covered under access to information to Parliament, ministers’ offices, and the courts.

Toughen penalties - Create new offences for obstructing access, destroying or altering records, and prohibit failing to document decisions or substantial discussions.

Giving the watchdog teeth - Give the commissioner the power to order government documents released.