The Access to Information Act in Canada: taking stock of 30 years Suzanne Legault Information Commissioner of Canada December 5, 2013

Foundations of the Access rights in Canada The right to request access is recognized as: – A quasi-constitutional right by the Supreme Court of Canada; “The overarching purpose of access to information legislation is to facilitate democracy by helping to ensure that citizens have the information to participate meaningfully in the democratic process and that politicians and bureaucrats remain accountable to the citizenry.” (Dagg v Canada Minister of Finance —1997 S.C.C.) – A limited constitutional right in certain cases (the Criminal Lawyers Association v. Ontario (Public Safety and Security), 2010). The Access to Information Act (hereafter, the Act) takes precedence over all other Canadian laws, unless expressly stated otherwise. 2

Presumption of openness The Act is based on a presumption in favour of disclosing government-held information; It is "not intended to limit in any way access to the type of government information that is normally available to the general public"; "Necessary exceptions to the right of access should be limited and specific." 3

Scope of the Act It applies to the following entities: – Federal public institutions (departments and agencies); – Crown corporations; – Agents of Parliament; – Other government institutions. Does not apply to Parliament, the ministers' offices, the courts and to certain institutions in which the government has an interest (e.g., Canada Health Infoway). 4

Independent review of decisions Agent of Parliament: – Independent: autonomous with respect to the government in place; – Reports directly to Parliament by filing annual and special reports, performance report cards, etc. Ombudsman: – Protects the rights of requesters under the Act; – Encourages citizens to participate in the democratic process; – Promotes greater accountability and transparency; – Power to make recommendations; can in no case force disclosure. These roles require objectivity, impartiality and non-partisanship: the Commissioner's role is to serve all parliamentarians, regardless of their political affiliation. 5

Taking stock of 30 years of the Act 2013 marked the 30th anniversary of the coming into force of the Act; Access to information is of vital importance: – It is a pillar of democracy, allowing citizens to hold their government to account and actively participate in the public policy process. Excellent opportunity to take stock of the Act's first 30 years: – Strong points as well as the more negative elements; – Current state of access to information; – Modifications to the access system to address new realities and respect requesters' rights and democratic principles. 6

Accomplishments Canada was one of the first countries to adopt such a law. Today, more than 90 countries have followed suit, each in turn adopting such a law; The Act imposed a duty on the government to process requests in a timely, responsible and complete fashion; Increase in requests made by Canadians (members of the public); Advances in the interpretation of the Act, creation of a rich and growing body of jurisprudence; Daily reports stemming from access requests are disseminated; Acknowledgement at the national and international levels of the importance of the access to information. 7

An era of change The past few years have been marked by significant changes: Technological changes: – Presence of new technologies: smart phones, communications via text message, etc.; approximately 98,000 BlackBerries in the government; The current use of text messages is a risk for access to information. – Change in the concept of information: evolution of the notion of information (what form it takes, how it is managed, stored, transmitted and received). 8

Changes to the government's structure and administration: – Increased complexity of the government's structure; – Reorganization of the government's administration: centralization of decision-making in the ministers' offices, multiplication of partnerships with the private sector, etc. Changes on the social level: – Birth of a generation of "information consumers"; – Canadian citizens' growing expectations regarding transparency and accountability: increasing number of requests made: the number of requests received has gone from 22,977 to 43,194 between and , an 88% increase; Nearly 40% of requests received in came from members of the public (30%, ten years ago); The Senate scandal has shed light on one of the Act's gaps (i.e., non-coverage of the Parliament and ministers' offices). An era of change (continued) 9

Challenges in access to information These changes give rise to numerous challenges in access-related matters: – The Act has not adapted to these rapid changes: over 30 years, it has remained essentially the same; it ranks 55th of 95 laws, according to the CLD's ranking. – File management systems have not evolved at the same pace: the speed, transmission methods and impressive amount of electronic data available continues to make the exchange, collection and management of information difficult for the government; no legal obligation to document decisions; vague with respect to rules for archiving, especially concerning text messages. 10

Clear signs of deterioration over the past 10 years. Multiple examples can be found in the Annual Report : – Several serious breaches of obligations set out in the Act; e.g., failure to meet the duty to assist, requiring the requester to make a second request to obtain documents included in the first request – Aboriginal Affairs and Northern Development Canada (AANDC). – Lengthy time to respond, lengthy extensions and impact of budgetary cutbacks; e.g., 1,100-day extension to National Defence; e.g., candid letter from a complainant regarding delays for final approval. – There has been a significant increase in the number of "no records/incomplete response" complaints; e.g.,failure to respond accurately to requests by not retrieving records – Correctional Service Canada. – Failure to meet commitment dates; – In the first seven months of the current fiscal year, there was a 37% increase in complaints compared to the same period last year. Current state 11

Constant erosion of the right to access: – Supreme Court of Canada ruled that the ministers' offices are not part of the government institutions for which they are responsible; – TBS Implementation Report 115 adds additional criteria that will further restrict access to records contained in ministers’ offices: When receiving an access to information request, the Minister’s delegate, usually the ATIP Coordinator, must then consider whether there are reasonable grounds to believe (that is, there is a serious possibility based on credible evidence) that there exist relevant records in the Minister’s office that would be considered to be under the institution’s control, as set out in the two-step control test discussed above. Such evidence may come from, for example, records already obtained from the institution. Current state (continued) 12

Current state (continued) Numerous confidentiality provisions from other laws override the right of access: – With each new provision added to the list, the scope of the Act decreases and the right of access erodes; – The list is not revised regularly; – The Office is not consulted on these changes. The exemptions and exclusions introduced in 2006 with the Federal Accountability Act have increased the complexity of requests and investigations: – Not necessary in most instances because provisions of general application exist. Open Government Initiative: – Positive initiative on the part of the government; – Necessary to reform the Act in order to overcome the democratic and accountability deficit. 13

The need for reform The Act has not undergone an in-depth revision; Joint Resolution of all the commissioners of Canada on the modernization of the access to information and privacy laws in October 2013; Our special report on the modernization of the Act, which will be submitted during the next session of Parliament, will make suggestions for reform to Parliament. Some recommendations: – The Information Commissioner should have the power to order the disclosure of documents; – The Act should be reviewed periodically; – Robust incentives should be included in the Act to improve the speed of disclosure; – The exceptions listed in the Act should be examined to ensure their relevance to today's context and continuously promote more disclosure ; 14

The need for reform (continued) – The scope of the Act should be broadened to include Parliament, ministers' offices and the court administration; – A mandate to raise awareness should be given to the Information Commissioner; – The Act should specifically set out the obligation to create documents, particularly in light of recent technological advances; – The exclusion of Cabinet's confidential documents should be reviewed. 15

In the immediate future Role of the Minister of Justice – Minister responsible for all modifications to the Act; President of the Treasury Board Secretariat’s crucial role: – Designated minister for the administration of the Act under section 70; – Responsible for implementing a government culture that respects the spirit of the Act. Parliament's crucial role in monitoring the access to information system: – Examination of institutional annual reports on the administration of the Act; – Institutions’ accountability for their performance with respect to access to information. 16

In the immediate future Importance of proactive disclosure; – There are currently significant variances between the Senate, the House, various political parties and independent Members; – Some rules to follow: Uniformity of disclosure (all subject to the same requirements); Sufficiently detailed disclosure; Disclosure within a time frame that respects the information's relevance; Information in an open, accessible and reusable format. However, proactive disclosure must be accompanied by legislative changes to ensure access to the documents. 17

Conclusion Access to government documents is a right that is essential to the functioning of democracy; Canadians should obtain the information to which they have a right in a timely and helpful fashion; The rapid evolution of today's world requires that we reconsider our concept of information, its storage and the way we make it available to the general public; In this context, it becomes imperative to review not only the Act, but also the entire access system, the institutional culture, etc.; Canada was once a leader in access to information and it is high time that it regain that status. 18