2014-2015 4. Promoting access

The Commissioner works to improve how the Access to Information Act is implemented across the federal government. The Commissioner is also active in Canada and internationally, helping develop, implement and improve access laws.

Balancing open government with access

The Commissioner has been supportive of the government’s activities in the area of open government, including Canada’s joining the international Open Government Partnership (OGP). At the same time, she has stressed that a strong access to information system is a crucial element of any open government plan.

In a September 2014 letter to the President of the Treasury Board, the Commissioner emphasized that the government’s upcoming open government action plan should include a commitment to modernizing the Access to Information Act. In her letter, the Commissioner concurred with the independent expert who reviewed Canada’s progress on implementing its OGP commitments and who noted that “open data is becoming privileged at the expense of other areas of open government and some of the other commitments that we have made in our OGP action plan to the international community and to Canadians.”

In a follow-up letter, the Commissioner made 16 recommendations on the draft plan, released in October 2014. Her recommendations focused on measures to help the government effect a fundamental change in its internal culture to promote the release of information and foster transparency, accountability and citizen engagement.

In addition to modernizing the Act to align with the principle of “open by default” and the most progressive national and international standards, the Commissioner recommended that the government provide more guidance and training on information management to public servants; and establish in the law a comprehensive duty to document, with sanctions for non-compliance. The Commissioner also recommended implementing a legal obligation to systematically declassify government records and having institutions release information in accordance with open government principles. Finally, she recommended that Treasury Board of Canada Secretariat (TBS) ensure adequate resourcing of the access to information function and that TBS take a lead role in recruiting, staffing and retaining much-needed access professionals.

The government released the 2014–2016 action plan in November 2014. It did not include a commitment to modernize the Act, nor did it take into account any of the Commissioner’s other recommendations. The government did commit to expanding the proactive release of information on government activities, programs, policies and services, and to making information easier to find, access and use. However, the Commissioner is of the view that such disclosure cannot replace a robust access to information system (see box, “Ensuring complementary approaches”) nor facilitate the necessary culture change.

Shedding light on decision-making by Cabinet

Cabinet is responsible for setting the policies and priorities of the Government of Canada. In doing so, ministers must be able to discuss issues within Cabinet privately. The need to protect these deliberations is well established under the Westminster system of Parliament and has been recognized by the Supreme Court of Canada.

Under the current law, Cabinet documents, with very few exceptions, are excluded from the Act under section 69. This means that the Commissioner is unable to review any such records as part of her investigations. In addition, and as the Commissioner noted in her 2013–2014 annual report, the process for reviewing records during the processing of access requests to determine whether they contain Cabinet confidences was changed in 2013. It is no longer carried out by an expert group at the Privy Council Office (PCO), but by lawyers at each institution (see “Section 69”). The Commissioner is concerned about the implications of this change on the consistency of the application of section 69 and about the increased use of this provision by institutions.

Throughout 2014–2015, the Commissioner monitored the situation. For the first time, during an investigation into a complaint against Public Safety Canada, PCO refused her request to re-review the records at issue to determine whether section 69 had been properly applied. PCO argued that the institution should carry out this step first to ensure it was fully accountable for its decisions about excluding records before PCO got involved. This lengthened the investigation considerably.

Also in 2014–2015, the Commissioner was able to confirm what she had heard anecdotally, that requesters are self-censoring the information they seek through access requests by specifically asking institutions not to process records that might contain Cabinet confidences. A search of the online open data portal containing completed access to information requests from April 2013 to May 2015 found more than 1,700 such instructions from requesters.

The Commissioner will continue to monitor the application of section 69. However, it is difficult to assess whether the provision has been properly applied without being able to review the records. The Commissioner has made several recommendations to amend the Cabinet confidences regime under the Act (see box, “Modernizing the treatment of Cabinet confidences”).

Updates to the Policy on Access to Information

In March 2014, the Commissioner wrote to the Secretary of the Treasury Board with comments on proposed changes to the Policy on Access to Information, which governs the administration of the Act. The Commissioner’s comments focused on, among other things, how to ensure efficient and effective investigations, and to improve the performance of institutions in responding to access requests.

TBS accepted the Commissioner’s recommendation that the policy acknowledge that it is important for institutions to collaborate with her office to help address complaints in a timely manner.

TBS also agreed that the policy should require institutions to document how they exercise their discretion when invoking exemptions that require it, to facilitate the review of refusal complaints. TBS also said it would add a specific mention in the policy that obstructing the investigation of complaints is an offence under the Act. These changes will be implemented in conjunction with TBS’s policy suite renewal.

However, the Commissioner remains concerned that TBS did not specifically address the need for accountability measures related to improving institutional performance in order to emphasize the importance of the culture change required. For example, the Commissioner had recommended that the performance agreement of the senior executive responsible for access in each institution cover compliance with the Act, including the resolution of complaints. She also recommended that institutions set and report on specific targets for access to information operations in their Report on Plan and Priorities and Departmental Performance Report. These and other measures of this type have proven effective in improving performance in individual institutions and in other fields.

Promoting access across Canada

Addressing the impact of current issues on access

Information and privacy commissioners and ombudsmen at the federal, provincial and territorial levels from across Canada confer regularly on issues of common and pressing interest, particularly as they relate to upholding the fundamental right of access to government information. In 2014–2015, the Office of the Information Commissioner co-hosted the annual meeting of commissioners and ombudsmen in Ottawa. As a result, the commissioners and ombudsmen issued two joint resolutions on current matters affecting the right of access.

In the first—released in late October 2014 in the immediate aftermath of the deaths of two Canadian servicemen on home soil—the commissioners and ombudsmen underlined the need for Canada to uphold fundamental rights and freedoms while taking steps to enhance security. The Information Commissioner followed this statement with a letter to the House of Commons Standing Committee on Public Safety and National Security, sharing her concerns about Bill C-44, An Act to amend the Canadian Security Intelligence Service Act and other Acts. In her letter, she noted that this legislation would have a negative effect on her ability to carry out her oversight role and on the amount of information that could be subject to disclosure under the Access to Information Act.

In the second joint resolution, issued in mid-November 2014, the commissioners and ombudsmen focused on the need for governments to modernize their information management practices to better protect and promote the rights of Canadians in the digital era.

In particular, the commissioners and ombudsmen urged their respective governments to review and modernize their information management frameworks by, among other things, embedding access rights in the design of public programs and systems, and creating a legislative duty for government employees to document their deliberations, actions and decisions. The commissioners and ombudsmen also recommended that governments adopt safeguards to prevent the loss or destruction of information, including digital records, so that they can easily be retrieved when needed, including to respond to access requests.

Assisting with the review of Newfoundland and Labrador’s access law

In August 2014, the Commissioner appeared before a committee reviewing Newfoundland and Labrador’s Access to Information and Protection of Privacy Act. The Commissioner presented her perspective on freedom of information and recommended improvements to the provincial law to help balance the confidentiality required to conduct the business of government with the need to ensure citizens have access to public information such that they can hold their governments to account. The Commissioner also submitted detailed comparative legislative research.

The committee made 90 recommendations to improve and streamline the law, many of which mirrored the Commissioner’s recommendations. The provincial government amended the law accordingly, and these changes came into effect on June 1, 2015. Newfoundland and Labrador’s access law is now the top-ranked in Canada, according to the Centre for Law and Democracy’s Right to Information Rating.

Sharing the Commissioner’s mandate and priorities with stakeholders

Over the course of the year, the Commissioner and a number of officials from her office spoke about her mandate and priorities to a variety of stakeholders, including Federal Court and Federal Court of Appeal law clerks, members of the federal access to information and privacy community, and new public servants. Reaching out to law and public administration students was also important to raise awareness about the requirements of the Access to Information Act. In addition, the Commissioner spoke at access-related conferences organized by the Canadian Bar Association, the University of Alberta and the Office of the Information and Privacy Commissioner of Newfoundland and Labrador.

Making the case for access on the international stage

Canada, as a pioneer in the field of access to information, has an important role to play in sharing the benefit of its knowledge and experience with the international access community.

In 2014–2015, the Commissioner was part of two panels convened by the Organization of American States (OAS) on equitable access to public information. The first, in August 2014 in Guatemala, focused on best practices associated with the characteristics, powers and composition of oversight bodies, such as information commissioners’ offices. In March 2015 in Argentina, the Commissioner and fellow panellists shared their experiences with and thoughts on adopting and implementing access laws.

This work follows on the development of the 2012 OAS Model Inter-American Law on Access to Public Information and its Implementation Guidelines, to which the Office of the Information Commissioner made a significant contribution. This work by the OAS was funded by Foreign Affairs, Trade and Development Canada.

As a result of the workshops, some Latin American countries, including Argentina, have either used the Model Law as the basis for their own laws or are in the process of incorporating some of the Model Law’s principles into their existing laws. The Commissioner’s special report on modernizing the Act was also informed by the Model Law.

Advising Parliament

As an agent of Parliament, the Commissioner provides advice to Parliament on important access-related matters and on the functioning of her office to ensure sufficient ongoing oversight of the access system.

Committee appearances

In May 2014, senior officials appeared on the Commissioner’s behalf before the House of Commons Standing Committee on Access to Information, Privacy and Ethics to discuss the Main Estimates. The officials spoke about the Commissioner’s budget and priorities, and the risks to her office that ongoing financial pressures and a growing workload presented. An appearance by the Commissioner before the same committee in December 2014 also covered the resources her office has available to carry out her mandate.

On January 28, 2015, the Commissioner and several of her fellow agents of Parliament appeared before the Standing Senate Committee on National Finance on Bill C-520, An Act supporting non-partisan offices of agents of Parliament. (The agents also sent a joint letter to the committee on the subject.) This proposed law seeks to prevent conflicts that could occur or could be perceived to occur between, on the one hand, the official duties and responsibilities of employees of agents of Parliament and, on the other, their past or future partisan activities. During her appearance, the Commissioner shared her and her employees’ concerns about the bill and how it could affect the work of her office (see box, “Bill could affect integrity of investigations”).

Reporting to Parliament

Each year, the Commissioner issues reports to Parliament to provide perspective on her oversight role within the access to information system and on her work to uphold the principles of access at the federal level.

Early in 2014–2015, the Commissioner published her second report into instances of interference with access to information requests at Public Works and Government Services Canada. (See “Interference at Public Works and Government Services Canada” in the Commissioner’s 2013–2014 annual report for more information.)

A highlight for 2014–2015 was the Commissioner’s special report on modernizing the Access to Information Act, released on March 31, 2015. Called Striking the Right Balance for Transparency, the report contains 85 recommendations that propose fundamental changes to the Act to resolve recurring problems. The Commissioner’s recommendations are also designed to help ensure that the Act is effective in both protecting information that legitimately needs to be protected and allowing requesters to gain access to information to help them hold the government to account.

Some of the report’s key points are aimed at creating a culture of openness by extending coverage of the Act to all branches of government; setting tighter timelines for the processing of requests; maximizing disclosure by ensuring that exemptions protect only what is strictly necessary; and strengthening the oversight of the access to information regime.

The Commissioner also issued a special report in May 2015 on her investigation into the treatment by the Royal Canadian Mounted Police of an access to information request for the data in the national long-gun registry (see also “Access to information: Freedom of expression and the rule of law”). In early June 2015, the Commissioner appeared before both a House of Commons and a Senate committee to present her concerns about the government’s bill to remove the national long-gun registry data from the coverage of the Access to Information Act (See box, “On the record,” for an excerpt of her remarks before the Senate committee.)