Backgrounder: Modernizing Canada’s Access to Information Act

Gatineau, Quebec, October 17, 2016 - It is the right of every person in Canada to access government information. This right is entrenched in the federal Access to Information Act passed by Parliament in 1983.

The Act was enacted more than 30 years ago, at a time when most information was paper-based and the Internet was still under development. The House of Commons Standing Committee on Access to Information, Privacy and Ethics (ETHI) recently reviewed the legislation and made recommendations on how to modernize it. Subsequent statements from the President of the Treasury Board signal that legislative changes will be coming that will ensure improved access and transparency. This backgrounder highlights the key issues and the roles and actions of the federal government, and the Information Commissioner of Canada, on the road to modernizing the federal Access to Information Act.

History

• The Access to Information Act came into effect in 1983.
• The Office of the Information Commissioner (OIC) was created at the same time, along with the process for requesting government information.
• The Act created a right of access to government information. The Supreme Court of Canada concluded that, although the protection guaranteed by paragraph 2(b) refers to freedom of expression, access to information "is a derivative right which may arise where it is a necessary precondition of meaningful expression on the functioning of government."
• About 270 government departments and agencies are subject to the Act.

Recent Activity

• The current Information Commissioner of Canada, Suzanne Legault, tabled a Special Report to Parliament on March 31, 2015, entitled Striking the Right Balance for Transparency: Recommendations to modernize the Access to Information Act, which included 85 recommendations. 
• This report reflects the highest standards and best practices for access to information legislation contained in laws of other jurisdictions around the world, model laws and guides, as well as high-level reports on access reform.
• In November 2015, the President of the Treasury Board and Minister of Justice received clear direction in their mandate letters about the need to review the Access to Information Act, and to extend the application of the Act to ministers’ offices, the Prime Minister’s Office, and the administration of Parliament and the courts, and to provide the Information Commissioner with the power to issue orders to disclose information.
• ETHI began its study of the Act in February 2016 and the Commissioner appeared twice. The first time was on February 25, 2016 and the second time was on May 19, 2016. 
• The Commissioner delivered a further written submission to the Committee to elaborate on her recommendation about which institutions should be subject to the Act.
• The President of the Treasury Board announced in March 2016 that reform of the Act would follow a two-phased process: the first phase would involve introduction of a bill consistent with the mandate letters, with a few minor additions; and the second phase, in 2018, would involve a more comprehensive review of the legislation.
• From May - June 2016, the government commenced an online consultation, inviting the public to comment on its proposals to revitalize access to information.
• In May 2016, the federal government announced a new directive eliminating all fees except for the initial $5 application fee.
• In June, 2016, the Government of Canada announced Canada’s Open Government Action Plan for 2016-2018, which includes a number of provisions to improve public access to government documents, including those that deal with budget data, economic and fiscal analyses, and grants and contributions. 
• Also in June, the ETHI Committee tabled its report with 32 recommendations, many of which aligned with the Commissioner’s advice. 

Recommendations from the Information Commissioner of Canada

The Information Commissioner is a champion of freedom of information and advocates for open government. She believes that freedom of information is a fundamental characteristic of a healthy democracy and that the citizen’s right to access information is paramount. Her recent report and public statements call on the federal government to strike the right balance between Canadians’ right to know and the legitimate protection of information that, if released, could potentially cause harm to governments, third parties or individuals.  

The Commissioner’s advice to government is that modernized legislation, with active monitoring, will hold government to account, while enhancing citizen engagement and improving public policy development by facilitating access to data, studies and the information government uses to make decisions. New legislation would address the need to meet public expectations, international standards and technological advancements that have dramatically changed how information is stored, shared and used.

In order to modernize the Act, the Commissioner made recommendations in several key areas, including:

Extend the Coverage of the Act

• Extend the reach of the legislation so it applies to Parliament, ministers’ offices, the Prime Minister’s Office and institutions that support Parliament and the courts.
• Include criteria in the Act for determining which institutions would be subject to the Act. Government management and administration have been transformed significantly since the Act came into force in 1983. Successive governments have expanded the type and altered the structures of organizations that perform government functions. Quasi-commercial entities, special operating agencies and public-private sector partnerships have become increasingly common modes for governments to carry out their business.

Duty to Document

• Establish a comprehensive legal “duty to document”, with appropriate sanctions for non-compliance. Access to information relies on good recordkeeping and information management practices. Without records, rights under the Act are denied. A legislated “duty to document” is an essential amendment to protect the right of access.
• Ensure that failure to document or preserve a decision-making process, with intent to deny the right of access (or directing, proposing or causing anyone to do so), should be prohibited under the Act.

Improve Timeliness

• Address the “culture of delay” that has developed within the federal public service.
• Introduce stricter timelines in the access to information process.
• Limit time extensions to what is strictly necessary based on a rigorous, logical and supportable calculation, up to a maximum of 60 days. Longer extensions would require permission from the Information Commissioner.

Maximize Disclosure

• Exemptions should be specific and focus only on protecting the interests they are intended to protect. They should also be injury-based, discretionary, time-limited and subject to a public interest override (e.g., environmental, health or public safety implications). Exclusions in the current Act should be repealed and replaced by exemptions, where necessary. This would allow an independent review of all records, including Cabinet documents.
• Provide government data and information in modern and accessible formats that are easy to use.

Strengthen Oversight

• Give the Information Commissioner the power to order the release of information
• The order-making model would also include mediation, strong investigative powers, the discretion to adjudicate, and the certification of orders as if they were orders of the Federal Court.
• The oversight model needs to be complemented by additional powers such as the ability to audit institutions’ compliance with the Act, to initiate investigations, to carry out education activities, to conduct or fund research, and to advise on legislation, programs and activities that have an impact on access to information rights.

Criminal Liability and Civil Responsibility

• Introduce a comprehensive regime of sanctions to address actions contrary to the quasi-constitutional right of access.

Mandatory periodic review

• Introduce a mandatory legislative review of the Access to Information Act every five years.