The year of access to information?

Remarks at the Canadian Access and Privacy Association Conference

by Suzanne Legault, Information Commissioner of Canada

November 30, 2015
Ottawa, Ontario

(Check against delivery)

Good morning.

Thank you to Larry for inviting me. It’s always a pleasure to be able to reconnect with the access community here in Ottawa. It’s been a big year, with many new developments, and many more to come in the year ahead.

Indeed, significant advances were achieved in access to information, but equally significant regressions occurred.

Very important decisions came down this year. Two cases in particular have provided much-needed clarification on the way the Act is applied: the decision from the Federal Court on fees and the one from the Federal Court of Appeal on extensions.

Members of my team will speak to these cases in greater detail later today.

Let me just say that the main takeaway from the first case on fees is that institutions will no longer be able to charge search and preparation fees for electronic records.

In the second court case, the Court confirmed the importance of timeliness in the right of access. The decision clarified that extensions need to be justified to withstand scrutiny and that requesters have a recourse in court if they feel the extension is unreasonable.

My office will issue advisory notices on these two decisions and how they impact on investigations.

This year, we also faced the most egregious, most disturbing encroachment to access rights that I have ever witnessed: The Long-gun Registry case.

As you probably know, I investigated a complaint about a request for the records contained in the long gun registry.

After a lengthy investigation, I made recommendations to the Minister of Public Safety and Emergency Preparedness for additional processing and disclosure of records. When the Minister refused to access my recommendations, I brought the matter before the Federal Court with the permission of the complainant.

I also referred to the Attorney General of Canada evidence of the possible commission of an offence, the destruction of records, under section 67.1 of the Act, which carries with it possible criminal sanction.

In light of my investigation, the government made a proposal of its own.

It included in the budget implementation bill provisions that rendered the Access to Information Act “non-applicable” to long-gun registry records. These provisions are effective retroactively to the date that the Ending the Long-gun Registry Act (ELRA) was introduced in Parliament, before the request at issue in my investigation was made to the RCMP.

Basically, as adopted, the provisions of the ELRA:

erased the request at issue in my investigation;
erased the complaint made to my Office;
erased my entire investigation, including production orders and examinations under Oath;
erased my recommendations to the Minister of Public Safety and my referral to the Attorney General;
erased my application to the Federal Court;
erased all potential administrative, civil or criminal liability of anyone involved; and
erased the requester’s right in this case.

I filed an application challenging the constitutionality of these provisions, on the basis of section 2(b) of the Charter and the rule of law.

In September, the OPP notified my office that they would not investigate this matter because there is no longer a criminal offence to investigate!

A few weeks ago, four organizations applied to the court for permission to become interveners: the Canadian Civil Liberties Association, the Criminal Lawyers’ Association, information commissioners at the provincial level from across the country, and the Centre for Law and Democracy.

Academics, historians, civil societies, the media, Canadian information commissioners and members of the public have understood, like I posited, that this case is no longer about the long-gun registry, but about Canadians quasi-constitutional right of access, the rule of law and respect for our rights and freedoms as protected by the Charter.

The proceedings on the constitutional challenge are ongoing and the hearings are scheduled for June 2016. The Federal Court application is stayed pending the outcome of the Charter challenge.

As those proceedings make their way through the courts, the world of access is about to change in significant ways.

In an open letter to all Canadians shortly after the election, the Prime Minister stated the following:
“Government and its information must be open by default. Simply put, it is time to shine more light on government to make sure it remains focused on the people it was created to serve – you.”

This is very encouraging. As the Information Commissioner, this is music to my ears.

However, we have to remember that someone else said:

"Information is the lifeblood of democracy. Without adequate access to key information about government policies and programs, citizens and Parliamentarians cannot make informed decisions, and incompetent or corrupt governance can be hidden under a cloak of secrecy."

That person was Stephen Harper, just a few months before becoming Prime minister.

For the new government to fulfill its promises, concrete steps must be taken to affect a fundamental shift in the culture of the federal government.

So change does not happen overnight.

The new government has already taken some positive first steps.

Nowhere is this clearer that in the ministerial letters, which were published earlier this month for the first time ever at the federal level. I’m sure I wasn’t the only one who read these letters with great interest to learn of the Prime Minister’s expectations, approach and priorities for his new Cabinet.

Running through all of these letters were common themes of openness and transparency.

The President of the Treasury Board, the Minister of Justice and the Minister of Democratic Institutions have been specifically directed in their mandate letters to “enhance the openness of government, including supporting a review of the Access to Information Act.”

The letters also specify which amendments will be prioritized. These include empowering my office with order making power, extending coverage of the Act to the Prime Minister’s and Ministers’ Offices, as well as administrative institutions that support Parliament and the courts and ensuring that Canadians have easier access to their own personal information.

These proposals are entirely consistent with the recommendations in my special report entitled Striking the Right Balance for Transparency, which was issued this past March.

In the last year, my office has been working on different ways to improve our investigative process. These will be extremely useful in the transition towards an order-making model.

We have been putting a lot of effort into improving our existing procedures, working on more predictability for institutions and complainants as well as more rigorous timelines at various stages of the investigation. We are developing a Code of Procedure that will assist both complainants and institutions in understanding and clarifying each of our roles and responsibilities throughout the investigation.

If we look at the various order-making models in other Canadian jurisdictions such as British Columbia and Ontario, the success of the model relies on a strong mediation process as a first step. In Ontario, a little more than half of the cases received are successfully mediated and about a quarter goes to adjudication. The rest are either withdrawn, screened out, or abandoned. BC has similar numbers with half the cases successfully mediated and less than 10 percent are adjudicated.

We have conducted a mediation pilot project in the last year to resolve certain complaints more quickly, without the need for a full investigation. Of the 318 files chosen for the project, 70 percent had a mediated outcome. For example, in certain circumstances, the complaints were settled, amalgamated with other similar files or discontinued.

We will be rolling out our mediation program to all of our investigators so that all complaints received by our office will go through mediation. Training has already started and we are aiming at fully implementing this new program at the beginning of the next fiscal year.

Mediation under an order-making model is even more effective from one under an ombudsman model. It is a process that is separate from the adjudication and therefore, benefits from a mediation privilege. What happens at mediation stays at mediation. It is, however, more rigorous and faster, and follows stricter timelines.

Overall, an order-making model will generate efficiencies in the system:

It gives a clear incentive to institution to apply exemptions only where there is sufficient evidence to support non-disclosure;
It provides finality for requesters because orders are binding;
Orders create a body of precedents that give institutions clear direction as to the Commissioner’s position;
It reduces the likelihood that the Commissioner will have to review issues that have already been adjudicated; and
It limits the review before the Court to the decision of the adjudicator and thereby avoids the delays associated with two levels on the disclosure decision.

A modern access to information law provides for broad coverage of all branches of government. I recommended in my special report that specific institutions be covered by the Act. These are: the Prime Minister’s and Ministers’ offices, institutions that support Parliament and institutions that provide administrative support to the courts. I am encouraged to see that this is also one of the changes requested by the Prime Minister in his mandate letter to the President of the Treasury Board and the Minister of Justice.

The fact that ministers’ offices are not currently institutions subject to the Act is a glaring accountability gap in the law. Given the Supreme Court of Canada’s decision in the PM Agenda case of 2011, a legislative amendment is the only cure.

It is not clear at this time what other amendments will be brought forward, but a legislated duty to document with adequate sanctions for non-compliance is an essential amendment to protect the right of access.

The absence of proper documentation of decisions has always been a weak link in access to information. How can we know about the basis for decisions if no records are created? Loss of information is infringing on the right of requesters to know what government is doing and to hold it accountable for its decisions.

This flaw has been compounded with the rapid development of technologies. Communications are increasingly happening in the digital world. Technologies are outpacing our capacity to appropriately manage both paper and digital records.

PINs and text messages are a trend where the decisions of public servants are simply not properly recorded and preserved. Thousands of federal employees and ministerial staff use wireless devices to send and receive instant messages every day. The preservation of these instant messages is solely based on their goodwill to identify, save and store records of business value. There is also a growing trend of “LDL” meaning “Let’s Discuss Live” – where nothing is recorded and nothing is available to the public.

Complaints to my office about missing records have increased over the years.

My investigation into the use of text messages has shown that the likelihood that instant messages could be retrieved dissipates with time and location.

This not solely a problem within the federal government. My colleagues from across the country and around the world are also facing this problem.

You have probably heard of the destruction of emails about gas plants in Ontario and the triple-delete scandal in BC.

Yet, no federal or provincial statute or regulation sets out a comprehensive and enforceable duty to create records documenting decision-making processes, procedures or transactions.

Without such a duty, access to information is seriously at risk.

In order for Canada to be at the forefront of transparency, it needs to push the envelope and include in the Act progressive standards that will significantly contribute to a change in culture and re-establish Canada’s position as a leader of transparency.

Tim Berners-Lee, the creator of the World Wide Web stated in this month’s issue of the The Economist that ‘Governments around the world need to amend their legal framework to adapt to the digital world.’

What is needed in today’s government is an integrated vision of open government. This vision must include a strong access to information regime, more publicly-available data and better dialogue with citizens.

In order to achieve this vision, each and every one of us must be an agent of change in our own sphere of influence.

We must work to transform obstacles into opportunities. Challenges can be overcome. The true spirit of the Access to Information Act can be achieved. A culture of secrecy can become one of openness. And that will mean a better Canada for all of us.

In closing, I want to talk about my own mandate letter, so to speak, were I to write one for myself.

My overarching goal is to protect access to information rights under the Act in order to to achieve an open and accountable government.

Specific priorities include:

Continuing our quest for additional funding.
Continuing to improve the efficiency of investigations, building upon our mediation function, and developing a Code of Procedure.
Assisting Parliament in its review of the Act;
Preparing my office for the transition to a new legislative mandate within an order-making model;
Working tirelessly to promote and support a change of culture.

Conclusion

UNESCO recently voted to designate September 28 as the International Day for the Universal Access to Information. Of course, September 28th is already celebrated around the world each year as International Right to Know Day. But UNESCO’s proclamation will give the event added significance.

In addition, the theme for next year’s World Press Freedom Day, which celebrates the fundamental principles of press freedom, is: This is your right! Access to Information and Fundamental Freedoms.

2016 also marks the 250 year anniversary of the world’s first freedom of information law, which was passed in Sweden in 1766. My office, in collaboration with the Swedish Embassy, is looking forward to hosting an event here in Ottawa next fall to celebrate this anniversary.

I learned recently with some surprise that the Oxford University Press’ Word of the Year for 2015 is actually not a word, but an emoji of “a face with tears of joy.”

If you were to ask me what my word of the year would be for 2016, I would pick three words: “access to information” in addition to the emoji of the Year!

The stars are aligning. I think that 2016 is going to be the Year of Access to Information; a year of opportunities for Canada to be a leader for access and for transparency.

With that, I will be pleased to take your questions.