State of access to information

Remarks at the ATIP Practitioners' Meeting

by Suzanne Legault, Information Commissioner of Canada

September 24 2014
Ottawa, Ontario

(Check against delivery)

Bon matin tout le monde.

Good morning everyone.

Thank you for your invitation. This is an opportunity for me to talk to you about Right to Know Week. It is also an opportunity to acknowledge the essential role you play in helping Canadians exercise their right of access to information held by federal institutions.

I am here today with my senior management team because I wanted you to be able to put a face to the names of the people you interact with during the course of your work. These people are truly the pillars of my organization, and I am fortunate to have them at my side.

Emily McCarthy is the Assistant Commissioner. Emily and her team are responsible for investigations and complaints resolution. You all know Sandra George, Director of Intake and Early Resolution.

Nancy Bélanger is General Counsel and Director of Legal Services.

Layla Michaud is the Director General of Corporate Services. Josée Villeneuve is the Director of Public Affairs, and Mario Perrier and Angelle Moore are in charge of the access to information and privacy function at the OIC.

In preparation for this morning, we canvassed coordinators for topics that were of interest. My remarks this morning have been inspired by the themes raised in your questions.

State of access to information

Right to Know Week is special for transparency champions because it brings together people from diverse backgrounds and disciplines – in Canada and abroad – to discuss the importance of the fundamental right of access to government information.

The World reached a new milestone this summer with the adoption of a 100th access to information law and, as the interest grows from countries that are considering becoming a member of the Open Government Partnership, so is the interest in adopting access to information laws, which is an eligibility criterion for the membership.

In Canada, most provinces and territories, as well as the federal government, have now embraced the Open Government Project and are implementing its stated goals of efficiency, transparency and accountability.

As stated in Blueprint 2020, citizens expect governments to live within their means, to be increasingly open and transparent, and to make available relevant information.

At the same time, the Internet and mobile communications are revolutionizing how people carry out their work and conduct their daily lives, and how private and public business operates. This raises expectations for e-enabled and easy access to government programs, services and information.

When you ask me about how access to information has evolved, I would say that this right is evolving in the context of the open government project, technological innovations, public expectations and international influence on applicable access to information standards.

To some extent, we saw the first wave of this influence with the sharp increase in the number of requests in 2012-2013. What's more, this increase came in large part from the public.

The Supreme Court of Canada has recently recognized again the important role of access to information legislation:

“Access to information legislation serves an important public interest: accountability of government to the citizenry. An open and democratic society requires public access to government information to enable public debate on the conduct of government institutions.

However, as with all rights recognized in law, the right of access to information is not unbounded. All Canadian access to information statutes balance access to government information with the protection of other interests that would be adversely affected by otherwise unbridled disclosure of such information.”

Hence, in reviewing any freedom of information legislation, the key issue is: does the legislation achieve the right balance, which is another question you have asked me to address. In 2014, this balancing exercise must be conducted in the context of open government initiatives and international norms.

In my view, the Act does not establish a fair balance between Canadians' right to be informed and the information that needs to be protected. The current structure of the Act favours non-disclosure. For example, the combination of sections 21, 23, 24 and 69, as they currently stand, are literally a shield against the disclosure of government information. We can also see this in the declining number of requests in which complete information is disclosed.

This norm clearly shows that disclosure is on the decline, even though the Act has remained essentially unchanged for over thirty years.

In the past year, my team and I have therefore undertaken a comprehensive review of the Act, national and international standards, thirty years of experience with investigations of complaints and analysis of all prior consultations on access to information issues.

The report to be submitted this fall will discuss the scope of the Act, process, timelines, limits, roles, powers and mandates of the Information Commissioner as well as proactive disclosure.

As I stated last week in a letter to Minister Clement, the stated objectives of the Open Government initiative cannot be realized without a strong access to information law.

You are the champions

At the beginning of this presentation, I referred to you as champions of transparency.

As delegated authorities under the Act, you are the front line administrators of access rights in federal institutions. You are the key decision makers under the Act. As we celebrate Right to Know Week and the crucial role that we you play, amongst others, in promoting and preserving Canadians' information rights, I encourage you to base your decisions on the spirit and intent conveyed in the Act and recognized by the jurisprudence in order to maximize disclosure.

In acting in this manner you will support the government's stated priorities and you will truly make a difference in the lives of Canadians.

I thank you again for inviting me to your meeting and my team and I will be pleased to take some time and answer some more of your questions.