Remarks on the special report Striking the right balance for transparency

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

by Suzanne Legault, Information Commissioner of Canada

February 25, 2016
Ottawa, Ontario

(Check against delivery)

Good morning. Thank you for the opportunity to discuss my Special Report to Parliament entitled Striking the Right Balance for Transparency containing recommendations to modernize the Access to Information Act.

During my appearance before this Committee this past Tuesday, I recommended that the number one priority for the Committee should be the modernization of the Access to Information Act. After over 30 years of existence, the time has come to take bold steps to transform this Act.

An eminent expert in the field of the access to information, Professor Alasdair Roberts, wrote the following in 2012: “Around the world, our understanding about the importance of governmental openness has advanced substantially.  We know much more about what works, and what does not work, in the domain of [right to information] law.  And we also know that [the] system of responsible government is resilient.  Fears that the constitutional order would be up-ended by the adoption of this sort of legislation were overblown.  There is a world of experience to be drawn upon while updating the Access to Information Act, and no good reason why it should not be done with boldness.”

The recommendations in my report are instructed by international, provincial and territorial legislation, annual reports, model laws, reform proposals made by former commissioners and parliamentarians, and reviews of the Act. The recommendations are also based on my own experience, after completing over 10,000 investigations during my mandate.  

The recommendations are drawn from the highest standards and best practices for access to information legislation.

The recommendations are aimed at allowing greater scrutiny by Canadians of government activities and decisions, by extending the coverage of the Act to all public institutions, including those that receive funding from the government.

The recommendations are aimed at strengthening the information management framework to ensure that the government remains accountable and transparent.

The recommendations are aimed at ensuring timeliness in the processing of requests. As the first Information Commissioner aptly said “Delaying access to information in effect destroys the purpose of the Act.” 

The recommendations are aimed at striking the right balance between transparency and the protection of specific interests that require protection. They are consistent with open government objectives, such as the disclosure of information that support the accountability of decision-makers and citizen’s engagement in public policy processes and decision-making. To maximize disclosure, exemptions should be narrow 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.

The recommendations are aimed at effective oversight based on key fundamentals such the ability to review all records and to issue binding orders. In fact, sixty-eight percent of all the countries that have implemented an access law in the past 10 years feature an order-making model. In Canada, B.C., Alberta, Ontario, Quebec and P.E.I. have those powers.

The recommendations are aimed at aligning the Act with open government initiatives such as publishing information that is of public interest, disclosing more information related to the repayment of grants, loans and contributions and requiring institutions to adopt publication schemes.

The recommendations are aimed at introducing a comprehensive regime of sanctions to address actions contrary to the quasi-constitutional right of access.

And finally, the recommendations are aimed at addressing inefficiencies and longstanding issues with the access to information system.

Let me give you a few concrete examples of issues that require a legislated solution. 

1. In terms of the coverage of the Act, the Supreme Court of Canada determined that ministers’ offices are not institutions covered by the Act. Decisions of Ministers can significantly impact Canadians. Ministers need to be accountable to the citizenry for the administration of their areas of responsibilities. Only a legislative amendment can extend the coverage of the Act to their office.
    
2. In terms of information management, there is documented evidence of serious breaches by the public service of its obligation to create and preserve information of business value. Recent examples include the “triple-deleted scandal” in B.C. and my report on the use of text messages. Information Commissioners from across the country co-signed a joint resolution in January calling on their respective governments to adopt a legal duty to document.
    
3. In terms of timeliness, delays are a frequent subject of complaint by requesters. At present, 40% of my workload deals with administrative complaints related to delays. One case in particular is a salient example of the lack of discipline currently in the Act. I had to bring a matter to court to obtain a decision that confirmed that a 1,110 days extension was unreasonable. Although the decision from the Federal Court of Appeal is expected to have a positive impact on timeliness, the current legislative framework is inconsistent with progressive norms.
    
4. In terms of maximising disclosure, the Supreme Court of Canada recently interpreted the exemption for advice to government in the Ontario access to information law very broadly. The Court’s ruling extends far beyond what must be withheld to protect the provision of free and open advice. The equivalent exemption in the federal law – section 21 – uses similar language to its Ontario counterpart. Section 21 was already considered, prior to the Court’s decision, as the “mack truck” of exemptions. The breadth of this exemption must be legislatively narrowed to strike the right balance between the protection of the effective development of policies, priorities and decisions on the one hand, and transparency in decision-making on the other.
    
5. In terms of strengthening oversight, the commissioner’s ability to issue orders (i) would ensure that the processing of request would be more timely, (ii) would instill more discipline and more predictability, (iii) would provide an incentive for institutions to make comprehensive and complete representations to the Commissioner at the outset, (iv) would create a body of precedence that increases over time and (v) requesters and institutions would then have a clear direction as to the Commissioner’s position on institutions’ obligations under the Act.

In order to assist the Committee, I will provide a written submission with reference notes on each of the 85 recommendations. I have provided a sample to the Committee for Chapter 1. I will also provide a backgrounder that enumerates the various proposals to amend the Act.

In closing, I would like to reiterate that the changes proposed in my Report are long overdue and are urgently needed. Having a modern access law would assist Canadians in exercising their right to know. It would also facilitate the creation of a government culture that is open by default. And, it would re-establish Canada’s position as a world leader in access to information. I strongly believe that the time has come to modernize the Act.  We need a new Act, one that will pass the test of time and the test of government.

Thank you, Mr. Chair.