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Remarks on ETHI's study of the Access to Information Act

Appearance before the House of Commons Standing Committee on Access to Information, Privacy and Ethics (ETHI)

by Suzanne Legault, Information Commissioner of Canada

May 19, 2016
Ottawa, Ontario

(Check against delivery)

Mr. Chair, thank you for inviting me to appear before the Committee as part of its study of the Access to Information Act.

I have closely followed your work, I have reviewed the testimony of the various witnesses, and I have read the submissions you have received during your study. In a short amount of time, you have gathered a significant amount of information that will guide your reflections.

I am also mindful of the fact that the government has announced recently a two-phase approach for improving the access to information regime. The first phase would seek to introduce a bill to Parliament consistent with the mandate letter of the President of Treasury Board with a few minor additions. The government is currently consulting Canadians on a number of proposals in relation to the first phase. The second phase would involve a more comprehensive review of the Act, set to start in 2018, with legislative reviews every five years.

Mr. Chair, although I understand the government’s desire to deliver quickly on its specific promises, I am disappointed with this approach. Our Access to Information Act is clearly outdated and severely outranked nationally and internationally. It fails to strike the right balance between the public’s right to know and the government’s need to protect information. The implementation of the recommendations in my special report entitled “Striking the Right Balance for Transparency” would recalibrate this essential balance.  They would bring Canada to the forefront of leaders in Access to information legislation.

The recommendations in my report are anchored on the highest standards and best practices for access to information legislation contained in laws of other jurisdictions, model laws and guides, as well as in high-level reports on access reform.

However, in order to be of assistance to the Committee as it prepares to issue its report on the review of the Act, I have identified recommendations that, in my view, should be prioritized.

These priorities have been identified for their greatest impact on transparency.  I will address these priorities in turn:

  • Coverage
  • Duty to Document
  • Timeliness
  • Maximizing disclosure
  • Order-making model
  • Mandatory periodic review

Coverage of the Act

Extending the scope of the Act to ministers’ offices and institutions that support Parliament and the courts is a strong step in the right direction to ensuring greater accountability and transparency.

Ministers’ offices

Ministers and their parliamentary secretaries, ministers of state and the Prime Minister are public office holders who make decisions that impact Canadians. These decisions also impact how tax dollars are spent. Ministers (and their staff) need to be accountable in disclosing information relating to the administration of their departments or other responsibilities.

Recommendation 1.2
The Information Commissioner recommends extending coverage of the Act to the Prime Minister’s Office, offices of ministers and ministers of State, and parliamentary secretaries.

Recommendation 1.3
The Information Commissioner recommends creating an exemption in the Act for information related to the parliamentary functions of ministers and ministers of State, and parliamentary secretaries as members of Parliament.

Parliament

Parliament is not covered by the Act, but the combined budget for the House of Commons, Senate and the Library of Parliament in 2014-2015 was more than $500 million.

Recommendation 1.4
The Information Commissioner recommends extending coverage of the Act to the bodies that support Parliament, such as the Board of Internal Economy, the Library of Parliament, the Conflict of Interest and Ethics Commissioner and the Senate Ethics Commissioner.

Recommendation 1.5
The Information Commissioner recommends creating a provision in the Act to protect against an infringement of parliamentary privilege.

The Courts

It’s a similar situation for the Courts’ administrative support bodies. In 2014-2015, the combined budget of the Supreme Court of Canada, the Office of the Registrar of the Supreme Court of Canada, the Courts Administration Service, the Office of the Commissioner for Federal Judicial Affairs and the Canadian Judicial Council was more than $600 million.

Recommendation 1.6
The Information Commissioner recommends extending coverage of the Act to the bodies that provide administrative support to the courts, such as the Registry of the Supreme Court, the Courts Administration Service, the Office of the Commissioner for Federal Judicial Affairs and the Canadian Judicial Council.

Recommendation 1.7
The Information Commissioner recommends that the Act exclude records in court files, the records and personal notes of judges, and communications or draft decisions prepared by or for persons acting in a judicial or quasi-judicial capacity.

In order to ensure the accountability and transparency of these institutions, the Act must apply to them. I therefore recommend that the Committee prioritize extending the scope of the Act to ministers’ offices and institutions that support Parliament and the courts.

Duty to document

Access to information relies on good recordkeeping and information management practices. Without records, rights under the Act are denied. A legislated duty to document with adequate sanctions for non-compliance is an essential amendment to protect the right of access.

A legal obligation to document the decision-making process protects access to information rights by:

  • creating official records;
  • facilitating better governance;
  • increasing accountability; and
  • ensuring a historical legacy of government decisions.

Without a legislated duty, there is a real risk — and we have seen that in our investigations - that not all information related to the decision-making process is being recorded or appropriately preserved.

My provincial and territorial colleagues and I have issued a number of joint resolutions calling upon our respective governments to create a statutory duty to document.

I call upon you to ensure this amendment be prioritized.  I therefore recommend a comprehensive legal duty to document, with appropriate sanctions for non-compliance.

Recommendation 2.1
The Information Commissioner recommends establishing a comprehensive legal duty to document, with appropriate sanctions for non-compliance.

Recommendation 7.3
The Information Commissioner recommends that failing 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) be prohibited under the Act.

Timeliness

Timely access to information is a pillar of any access to information regime. Timeliness has been a long standing struggle of our access to information regime. Delays are a frequent subject of complaints by requesters. Investigations of these complaints have revealed a culture of delay across the access to information system.

In Chapter 3 of my modernization report, I make several recommendations to reverse a culture of delay that has depleted the right of access. These include limiting 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 the permission of my office. The recommendations also seek to limit delays stemming from consultations with other institutions, other jurisdictions and third parties.

Mr. Chair, addressing timelines is a win-win-win. Requesters will receive relevant and useful information; Institutions will be less burdened to respond to complaints that are time-consuming and constantly competing with processing requests; and, my cohort of investigators can focus their efforts on remedying refusal complaints. About 40% of my workload deals with administrative complaints dealing with delays. The vast majority of these complaints are well-founded. I therefore recommend addressing delays by implementing the series of recommendations found in my report.

Recommendation 3.1
The Information Commissioner recommends that extensions be limited to the extent strictly necessary, to a maximum of 60 days, and calculated with sufficient rigour, logic and support to meet a reasonableness review.

Recommendation 3.2
The Information Commissioner recommends that extensions longer than 60 days be available with the permission of the Information Commissioner where reasonable or justified in the circumstances and where the requested extension is calculated with sufficient rigour, logic and support to meet a reasonableness review.

Recommendation 3.3
The Information Commissioner recommends allowing institutions, with the Information Commissioner’s permission, to take an extension when they receive multiple requests from one requester within a period of 30 days, and when processing these requests would unreasonably interfere with the operations of the institution.

Recommendation 3.4
The Information Commissioner recommends the Act make explicit that extensions for consultations as per section 9(1)(b) may only be taken to consult other government institutions or affected parties, other than third parties who already have consultation rights under section 9(1)(c), and only where it is necessary to process the request.

Recommendation 3.5
The Information Commissioner recommends that, in cases where a consulted party fails to respond to a consultation request, the consulting institution must respond to the request within the time limits in the Act.

Recommendation 3.6
The Information Commissioner recommends that a third party is deemed to consent to disclosing its information when it fails to respond within appropriate timelines to a notice that an institution intends to disclose its information.

Recommendation 3.7
The Information Commissioner recommends allowing an extension when the requested information is to be made available to the public, rather than claiming an exemption.

Recommendation 3.8
The Information Commissioner recommends that if an extension is taken because the information is to be made available to the public, the institution should be required to disclose the information if it is not published by the time the extension expires.

Recommendation 3.9
The Information Commissioner recommends repealing the exemption for information to be published (section 26).

Recommendation 3.10
The Information Commissioner recommends that extension notices should contain the following information:

  • the section being relied on for the extension and the reasons why that section is applicable;
  • the length of the extension (regardless of what section the extension was taken under);
  • the date upon which the institution will be in deemed refusal if it fails to respond;
  • a statement that the requester has the right to file a complaint to the Information Commissioner about the extension within 60 days following receipt of the extension notice; and
  • a statement that the requester has the right to file a complaint to the Information Commissioner within 60 days of the date of deemed refusal if the institution does not respond to the request by the date of the expiry of the extension.

Maximizing disclosure

The Act provides that government information should be available to the public, subject to limited and specific exceptions and that decisions on disclosure should be reviewed independently of government.

However, under the Act, many exemptions are not sufficiently limited and specific. As well, the Act provides for exclusions, shielding their application from independent review.

As a priority, the Committee needs to address the exemption for advice and recommendations, and the exclusion for Cabinet confidences.

Section 21: Advice and recommendations 
Policy and decision making is at the heart of government. Although there is a public interest in ensuring the protection of full, free and frank advice by public officials, there is an equally important public interest in providing citizens with the information needed to be engaged in public policy and decision-making processes. This information is necessary to have a meaningful dialogue with government and to hold government accountable for its decisions.

Under the current exemption for advice and recommendations, information about priorities, policies and decisions is broadly protected from disclosure.

In order to limit its application to protect only the interest at stake, this exemption must be limited so it applies only where disclosure would result in injury.  The scope and duration of this exemption should also be limited.

I therefore recommend amending this exemption as a priority if the government is to give effect to its accountability and transparency agenda.

Recommendation 4.21
The Information Commissioner recommends adding a reasonable expectation of injury test to the exemption for advice and recommendations.

Recommendation 4.22
The Information Commissioner recommends explicitly removing factual materials, public opinion polls, statistical surveys, appraisals, economic forecasts, and instructions or guidelines for employees of a public institution from the scope of the exemption for advice and recommendations.

Recommendation 4.23
The Information Commissioner recommends reducing the time limit of the exemption for advice and recommendations to five years or once a decision has been made, whichever comes first.

Cabinet confidences

Cabinet is responsible for setting the policies and priorities of the Government of Canada. Ministers must be able to discuss issues within Cabinet privately. Therefore, the need to protect the Cabinet decision-making or the deliberative process is well established.

However, at present, Cabinet confidences are excluded from the right of access under the Act, subject to certain limited exceptions. The exclusion as written is overly broad, and goes beyond what is necessary to protect Cabinet’s deliberative process.

I therefore recommend that the Cabinet confidences exclusion be repealed and replaced with a mandatory exemption that is limited to when disclosure would reveal the substance of deliberations of Cabinet. This would allow the Commissioner to exercise its independent review function.

Recommendation 4.2
The Information Commissioner recommends that all exclusions from the Act should be repealed and replaced with exemptions where necessary.

Recommendation 4.26
The Information Commissioner recommends a mandatory exemption for Cabinet confidences when disclosure would reveal the substance of deliberations of Cabinet.

Recommendation 4.27
The Information Commissioner recommends that the exemption for Cabinet confidences should not apply:

  • to purely factual or background information;
  • to analyses of problems and policy options to Cabinet’s consideration;
  • to information in a record of a decision made by Cabinet or any of its committees on an appeal under an Act;
  • to information in a record that has been in existence for 15 or more years; and
  • where consent is obtained to disclose the information.

Recommendation 4.28
The Information Commissioner recommends that investigations of refusals to disclose pursuant to the exemption for Cabinet confidences be delegated to a limited number of designated officers or employees within her office.

Public interest override

A public interest override allows for the competing interest of the public’s right to know to be balanced against the interest the exemption protects. Considering the public’s interest should be an automatic reflex when determining if non-disclosure is appropriate and necessary.

I also recommend a list of factors to consider in weighing the public interest in disclosure. These include the government’s commitments on open government as well as environmental, health or public safety implications. This list is non-exhaustive and could also include other important factors, such as the rights of indigenous people.

It is a paramount that this omission in the Act be corrected to ensure the proper balance between competing interests.

I therefore recommend, as a priority, that a public override be included in the Act.

Recommendation 4.1
The Information Commissioner recommends that the Act include a general public interest override, applicable to all exemptions, with a requirement to consider the following, non-exhaustive list of factors:

  • Open Government objectives;
  • environmental, health or public safety implications; and
  • whether the information reveals human rights abuses or would safeguard the right to life, liberty or security of the person.

Oversight

Order-making model

I have made a number of recommendations to strengthen oversight of the right of access. In my view, the most effective model is the order-making model, with orders subject to judicial review by the Federal Court.  This model would include mediation, strong investigative powers, the discretion to adjudicate, and the certification of orders as if they were orders of the Federal Court.

The benefits of this model are clear and indisputable:

  • Orders from the Commissioner would create a body of precedents that increases over time. Requesters and institutions would then have clear direction as to the Commissioner’s position on institutions’ obligations under the Act. The body of precedents would also reduce the likelihood that the Commissioner would have to review issues that have already been adjudicated.
  • It gives a clear incentive to institutions to apply exemptions only where there is sufficient evidence to support non-disclosure and then put this evidence before the adjudicator, as judicial review before the Court is based on the record that was before the adjudicator.
  • The grounds on which the order can be set aside are limited and the institution cannot introduce new evidence or rely on new exemptions, as it is the adjudicator’s, and not the institution’s, decision that is under review before the Court.
  • It avoids the redundancy of having two levels of review of the same decision, which can result in more timely access to information.
  • The burden to seek a judicial review before the Court is on institutions, and not requesters, if the institution wishes to oppose the disclosure ordered by an adjudicator.
  • It provides finality for requesters because orders of the adjudicator are binding unless reviewed by the Court.

In short, this model improves timeliness, instills disciplines and creates predictability.

Recommendation 5.1
The Information Commissioner recommends strengthening oversight of the right of access by adopting an order-making model.

Recommendation 5.2
The Information Commissioner recommends providing the Information Commissioner with the discretion to adjudicate appeals.

Recommendation 5.3
The Information Commissioner recommends that the Act provide for the explicit authority to resolve appeals by mediation.

Recommendation 5.4
The Information Commissioner recommends that any order of the Information Commissioner can be certified as an order of the Federal Court.

Recommendation 5.7
The Information Commissioner recommends that the Act maintain the existing investigative powers of the Information Commissioner.

Other powers

The oversight model employed in the Act needs to be complemented by additional powers to maximize its effectiveness.  These powers include the ability to audit institutions’ compliance with the Act, to initiate investigations, to carry out education activities, to conduct or fund research, to advise on legislation, programs and activities that impact on access to information rights.

Recommendation 5.5
The Information Commissioner recommends that the Act maintain the existing power to initiate investigations related to information rights.

Recommendation 5.6
The Information Commissioner recommends that the Act provide for the power to audit institutions’ compliance with the Act.

Recommendation 5.8
The Information Commissioner recommends that the Act provide for the power to carry out education activities.

Recommendation 5.9
The Information Commissioner recommends that the Act provide for the power to conduct or fund research.

Recommendation 5.10
The Information Commissioner recommends that the government be required to consult with the Information Commissioner on all proposed legislation that potentially impacts access to information.

Recommendation 5.11
The Information Commissioner recommends that institutions be required to submit access to information impact assessments to the Information Commissioner, in a manner that is commensurate with the level of risk identified to access to information rights, before establishing any new or substantially modifying any program or activity involving access to information rights.

I therefore recommend a comprehensive order-making model, which will place Canada at the forefront of leaders in access to information legislation.

Mandatory periodic review of the Act

Should Parliament decide to follow a two step approach to reform the Access to Information Act, the first phase legislation must include a mandatory review in 2018 and every five years thereafter.  This will ensure that a comprehensive review does in fact occur in 2018.

Recommendation 8.1
The Information Commissioner recommends a mandatory parliamentary review of the Act every five years, with a report tabled in Parliament.

Finally, Mr. Chair, I wish to reiterate that the Act has fallen behind modern standards. The result is that Canadians’ information rights are not adequately protected.  In my view, a comprehensive reform of the Act is long overdue and should be undertaken promptly to meet the information realities of the 21st century. Over the last 30 years, there have been extensive studies, debates, consultations and hundreds of legislations reviewed.  What is required now are policy decisions to reform the Act.

Mr. Chair, as I have stated before, the Act does not strike the right balance between the public’s right to know and the government’s need to protect information. Now is the time to take bold action to ensure Canadians access rights are protected.

With this, I am looking forward to your questions.

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