2016-2018 Letter to the President of the Treasury Board on Canada’s Open Government Plan 3.0

July 12, 2016

The Honourable Scott Brison, P.C., M.P.
President of the Treasury Board of Canada
90 Elgin Street, 8th Floor
Ottawa, Ontario  K1A 0R5

Dear Minister:

Please find enclosed my comments on the implementation of Canada’s Open Government Action Plan for 2016-2018.

First, let me congratulate you on your commitment to pursuing an open, transparent, and accountable government. Your goal of making government and its information open by default would not be possible without your strong leadership. The new plan on open government is ambitious and will, if implemented, significantly improve government’s openness.

I am particularly pleased to see that your plan contains twice as many commitments as in the 2014-2016 Action Plan. In this context, your pledges to foster an open by default environment and to promote fiscal transparency are noteworthy, especially with regards to budget data, economic and fiscal analyses, and grants and contributions. I welcome your commitments to increase access to geospatial data, to promote the Open Data Exchange, and to implement the Extractives Sector Transparency Measures Act. Your steps towards ensuring open science, including allowing scientists to speak freely about their research, are also well received.

My comments will focus on six commitments.

Commitment 1: Enhance Access to Information

 

As you know, I tabled in March 2015 a special report to Parliament, “Striking the Right Balance for Transparency,” where I make 85 recommendations to modernize the Access to Information Act (Act). Canada’s access to information legislation is outdated and changes are needed to recalibrate the balance between public’s right to know and the government’s need to protect information. The recommendations in my report are informed by the highest standards and best practices contained in laws of other jurisdictions, as well as model laws, guides, and high-level reports on access reports.

In February 2016, the Standing Committee on Access to Information, Privacy and Ethics (ETHI) undertook a study of the Act. I was called as a witness to put forth my views on amendments to the Act and the government’s two-phased approach for improving the access to information regime. I also made priority recommendations to the Committee that, if implemented, would have the greatest impact on transparency. These are:

• extending coverage of the Act to certain institutions, such as ministers’ offices and institutions that support Parliament and the courts;
• establishing a comprehensive legal duty to document, with appropriate sanctions for non-compliance;
• addressing delays to ensure timeliness;
• repealing the exclusion for Cabinet confidences and replacing it with a mandatory exemption;
• narrowing the exemption for advice and recommendations and the newly created exemption for Cabinet confidences, so that these exemptions focus on the interests at stake;
• creating a public interest override for all exemptions;
• strengthening oversight of the right of access by adopting an order-making model; and
• ensuring mandatory periodic review of the Act, with the first review commencing in 2018.

In its June 2016 report, the Committee made 32 recommendations to the government to enhance Canada’s access to information regime. These are in line with the recommendations I made to strengthen transparency and accountability.

I recommend that amendments to the Act be made to reflect these recommendations.

Commitment 2: Streamline Requests for Personal Information

 

It is unclear from the proposal what the objective of this commitment is, as Canadians can already make an access to information or privacy request online through a central website. Moreover, both the Access to Information Act and Privacy Act provide for a 30-day period for answering a request.

Nonetheless, the current online platform can be improved. In the course of consultations on previous open government plans, I recommended the addition of an online complaints feature to the current platform. If this is what is envisaged for privacy requests, the commitment should also be extended to access to information.

Commitment 4: Provide and Preserve Open Information

 

In the Directive on Open Government, the government made it a priority to improve access to more quality data and information. This commitment primarily lists milestones for providing and preserving information. In my view, there should be additional requirements in the plan for proactive disclosure of information as well as the declassification of government records that give insight into government decision making.

I recommend that the government consider three recommendations that I have made in my special report:

• the implementation of a statutory obligation to systematically declassify government records, including Cabinet confidences;
• institutions should be required to proactively publish information that is clearly of public interest;
• institutions should be required to post the responsive records of completed access to information requests within 30 days after the end of each month, if the information is or is likely to be frequently requested.

Commitment 5: Define an Approach for Measuring Open Government Performance

 

I agree that a stronger reporting framework is required to improve compliance with the Act. In my experience, the most important elements to achieve success in this area are the commitment of the institutions towards transparency and accountability, as well as leadership in the institutions’ higher echelons.

As part of a performance management framework for open government, the government should set specific performance targets in relation to the access to information program. These include:

• a commitment to increasing compliance with the Act by setting specific performance targets to improve timeliness;
• a commitment to include in all deputy heads’ performance accord a requirement to meet performance targets and to comply with the obligations of the Act.

Commitment 6: Develop Open Government Skills across the Federal Public Service

 

In order to realize profound and enduring effects across all of government for the benefit of Canadians, I believe that the plan must ensure that all systems, policy instruments, directives, training, staff and most importantly culture, align with open government’s purposes. This commitment is a step in the right direction.

It is important, in my view, to ensure that the government develop an integrated vision for open government such that the implementation of all policies that are intrinsically connected to open government such as communications, information management and access to information work seamlessly together.

During the 2014-2016 consultations for the second action plan, I recommended a number of commitments to better equip the government to implement an integrated vision. These are:

• establish the position of Chief Open Government Officers within institutions;
• create an open government lens that will be used in the design and implementation of policies, programs, initiative and legislative proposals;
• provide training to ensure that all government employees under the Access to Information Act interpret the Act in favour of maximum disclosure.

Commitment 20: Enable Open Dialogue and Open Policy Making

 

In order to achieve this commitment, I believe that the government should make more information available to the public on key decisions and priorities.

Policy- and decision-making is at the heart of government. There is public interest in providing Canadians with the information needed to be engaged in public policy and decision-making processes, to have a meaningful dialogue with government, and to hold government accountable for its decisions. At present, however, under the current exemption for advice and recommendations and the exclusion for Cabinet confidences, information about priorities, policies and decisions is broadly protected from disclosure.

In my special report to Parliament, I propose a series of recommendations that would narrow the application of exemptions and exclusions so that they protect only the interest that needs to be protected. These include amending the Act to:

• add a reasonable expectation of injury test to the exemption for advice and recommendations.
• repeal the current exclusion for Cabinet confidences and replace it with a narrow mandatory exemption.
• include a general public interest override applicable to all exemptions, with a requirement to consider a non-exhaustive list of factors including open government objectives.

I note that the Standing Committee on Access to Information, Privacy and Ethics made similar recommendations in their June 2016 report.

I would like to close with commending the government on making open government a priority on its agenda, and developing a National Action Plan that is ambitious yet achievable with good leadership and a culture change within federal institutions. Attitudes must evolve so that information becomes easy to access, and that receiving a request for information is seen as something positive, as it contributes to transparency, accountability, and citizen engagement, all of which are foundational to the Open Government Partnership.

My office would be pleased to collaborate with your secretariat on open government initiatives.

Sincerely,

Suzanne Legault
Information Commissioner of Canada

c.c.: Ms. Yaprak Baltacioglu, Secretary of the Treasury Board of Canada

       Open Government Team, Secretary of the Treasury Board of Canada