Make Access the Rule
Secrecy the Exception
A submission to the Open Dialogue Consultation
of the Office of the Information Commissioner
on reforming the Access to Information Act
Submitted by
The Canadian Committee for World Press Freedom
January 2013
The Canadian Committee for
World Press Freedom
http://www.ccwpf-cclpm.ca
Contact: Hugh Winsor
[email protected]
tel: 613-729-8604 or 613-296-3601
The Canadian Committee for World Press Freedom (CCWPF) is a non-profit body
whose mission is to celebrate World Press Freedom Day and to advocate on behalf of
freedom of expression both nationally and internationally. At our World Press
Freedom Day luncheon in Ottawa, an annual event since 1998, awards are presented
to Canadian media workers who have made significant contributions to the cause. The
luncheon also recognizes the creative work of editorial cartoonists from around the
world who use images and words to make powerful commentaries on free speech
issues.
Freedom of Expression and the Right to Information
Since the Watergate scandal four decades ago, access to information – or, in better
terminology, freedom to information, or the right to information – has come to be
recognized as an essential component of the fundamental right, celebrated in Article
19 of the Universal Declaration of Human Rights, to freedom of expression.
As the Atlanta Declaration1 explains:
“… access to information is a foundation for citizen participation, good
governance, public administration efficiency, accountability and efforts to
combat corruption, media and investigative journalism, human development,
social inclusion, and the realization of other socio-economic and civil-political
rights.”
The Current Context — a Culture of Secrecy
As an advocate of freedom of expression, the CCWPF has been very concerned in
recent years about the culture of secrecy in the federal government. This culture of
secrecy, reinforced by strict central control of all government messaging and
information dissemination, shows up in the following ways throughout the access
system:2
Growing wait times for the release of information under Access to
Information.
The increasing extent of redaction of released documents; in 2009-2010,
requesters received all documents requested, without redaction, in only 15 per
cent of cases, a significant decline from 40 per cent in 2006.
1
In February 2008, more than 125 members of the global access to information community
from 40 countries — representing governments, civil society organizations, international
bodies and financial institutions, donor agencies and foundations, private-sector companies,
media outlets and scholars — gathered in Atlanta, Georgia, under the auspices of the Carter
Center to adopt the Atlanta Declaration And Plan Of Action For The Advancement Of
The Right Of Access To Information.
2
The information that follows concerning delays, redactions and exemptions is taken from
various reports by the Information Commissioner and the Treasury Board’s Infosource.
2
The number of ATI exemptions claimed every year on national security
grounds has tripled since 2002-2003; international affairs and defence are used
as reasons for refusing release information in 22 per cent of all requests made
to the federal government (up from 5 per cent in 2001).
Reports of politicization of the access process (by “red-flagging” requests
from the media or government critics).
Reports of government officials finding ways to avoid the creation of records
(for example by not taking minutes of meetings and by non-archived point-topoint electronic messaging).
The ranking of Canada’s access legislation, compared to 92 other countries
with right to information laws, has fallen to 55th place.3
Principles for Reform
As much as Canada’s Access to Information Act (ATIA) needs reform, amending the
law is not sufficient to dismantle Ottawa’s culture of secrecy. This requires a new
attitude toward information, the rights of citizens to obtain it and the duty of
government officials and entities to create and release it.
Governments violate freedom of expression in the first instance when they fail to
create records as they are developing policies and exercising state power. Information
generated by public bodies is essential content for the exercise of our free expression
rights. This information, in free and open circulation, is the oxygen that sustains a
democratic society. The CCWPF therefore recommends that, in re-writing the Access
to Information Act, prominence be given to the principle that the government will
“oblige public officials to create the records necessary to document their actions
and decisions.”4
The CCWPF believes that a foundational principle underpinning all Access to
Information laws should be that access is the rule, secrecy the exception.
Accomplishing this requires a sea change in attitudes and practices:
Public bodies should be pro-active in releasing information that was, after
all, created at taxpayer expense; this both promotes transparency and reduces
the costs of an access process.
As the Information and Privacy Commissioner of Ontario has pointed out,
access should be “embedded into the design of public programs from the
3
Global Right To Information Ranking, by the Centre for Law and Democracy, September
28, 2012.
4
These are the precise words of the 2006 Conservative Party of Canada election promise:
Stand Up for Canada, The 2006 Conservative Party federal election platform.
3
outset.”5
Access procedures, where needed, should have exceptions that are
discretionary, narrowly defined and limited by a test of a risk of actual harm
and a mandatory public interest override. In other words, information should
be released when the public benefit of release outweighs the potential
public harm. We realize this creates a new framework for determining
disclosure and that there needs to be some creative deliberations to design
mechanisms to establish the relative balance.
The burden of proof to justify a refusal to release information should always
fall on the holder of information and there should be clear penalties and
sanctions for non-compliance by public officials.
Additional powers and authority should be given to the Information
Commissioner (see below).
In addition to these broad principles to reverse the culture of secrecy, the CCWPF
recommends reform of the ATIA in the following areas:
1) SCOPE
1.1. In Canada, only citizens, permanent residents, and individuals and incorporated
entities present in Canada can use the access to information process. However, Article
19 of the Universal Declaration of Human Rights asserts that “everyone” has the right
“to seek, receive, and impart information and ideas through any media and regardless
of frontiers.” In countries where anyone is allowed to use the access process, there is
some evidence that accountability and good governance is enhanced. Therefore, we
recommend that Canada’s Access to Information Act should be amended to allow
“anyone” to file requests.
1.2. The Cabinet, the House of Commons, the Senate and the Judiciary – vital parts of
government currently excluded from the ATIA – must be brought under the act and
made subject to access requests. This is a strange anomaly, the exclusion of bodies
essential to democracy from an access process designed to support and enhance
democracy. When parliamentarians, senior civil servants and court officers are
protected from having to respond to access requests, they are freed from duties to
accountability. This can only contribute to the culture of secrecy. We understand there
are aspects of Cabinet operations and procedures that must remain confidential, at
least for certain periods, and similarly for the House of Commons, and the Judiciary.
We believe appropriate protocols can be developed to cover what should be accessible
and what should remain secret and for how long. In the case of the judiciary, access
legislation should apply to court administration, expenses and the appointment
process but not to legal issues for which the courts have well-established principles
and protocols tied to the concept that our justice system is predicated on a fair and
5
Access by Design, by Ann Cavoukian, Information and Privacy Commissioner of
Ontario, April 2012.
4
transparent process. Rather, we object to the blanket exemption for all aspects of
Cabinet, House of Commons, Senate and the Judiciary. So we contend there is no
reason these bodies should not be placed under the act with the aforementioned
qualifications as they are in many other democracies without harm or negative
consequences.
1.3. The current access law lists those entities that it covers in a Schedule to the Act.
However, a number of government agencies, or entities that are substantially funded
by government and/or perform the work of government, are not listed — and so they
do not need to respond to access requests and are unburdened by accountability. For
example, Canada’s access law does cover port authorities but does not cover any of
the large airport authorities. Similarly, NAV Canada, the Canada Health Infoway, the
Canada Media Fund and the Olympic organizing committees are not covered. In all
there are more than 100 “other corporate interests” of the Government of
Canada that should be subject to the ATIA to guarantee Canadians a higher
degree of transparency and accountability.6
Since a list system will never keep pace with the creation of new bodies and the
evolution of existing ones, the ATIA should be reformed to include, a clear
definition to determine which institutions should be subject to the right of access.
We favour the definition outlined in the Model Freedom of Information Law of the
organization Article 19:
For purposes of this Act, a public body includes any body: (a) established
by or under the Constitution; (b) established by statute; (c) which forms
part of any level or branch of Government; (d) owned, controlled or
substantially financed by funds provided by Government or the State; or
(e) carrying out a statutory or public function, provided that the bodies
indicated in sub-section (1)(e) are public bodies only to the extent of their
statutory or public functions.7
We recall that the 2006 election Platform of the Conservative Party promised such a
reform:
“A Conservative government will: Expand the coverage of the act
to all Crown corporations, Officers of Parliament, foundations and
organizations that spend taxpayers' money or perform public
functions.”8
6
Open Outlook, Open Access, A Special Report to Parliament by Suzanne Legault
Information Commissioner of Canada, March 2011, Chapter 1.
7
A Model Freedom of Information Law, Article 19, London, 2005.
8
Stand Up for Canada, The 2006 Conservative Party federal election platform.
5
2) Procedures — Modernization to Serve Citizens:
2.1. Most members of our committee have worked in or with the media. As a result
we are keenly aware that many reporters simply do not use the Access system because
of the time it takes to obtain information and the heavy redaction of that information.
For journalists information is like a weather report – it must be current to be of value;
old news is no news. Therefore, for us, a priority in Access reform must be in the
reduction of delays. The average request response time among countries with
Access laws is two weeks. That should be the goal for Canada.
2.2. This requires greater authority for the Information Commissioner to be able to
review material that would otherwise be refused under mandatory exemptions (we
address this below). In addition, we favour a system of incentives and penalties for
government departments and agencies that fail to meet deadlines.
2.3. Because inter-departmental consultations have been responsible for increased
delays in recent years, we suggest a review of the inter-departmental consultation
process in order to streamline it.
2.4. Access to Information should be accessible. However, the current system is
complicated and difficult for individuals not experienced in making and monitoring
ATIP requests. And it must also be remembered that lack of access to information
disproportionately affects the poor, women and other vulnerable and marginalized
people. Therefore, the procedure of requesting information should be as userfriendly as possible and government employees should work within a culture of
“customer service.” For example, requesters should have the option of receiving
documents electronically, a measure that would save photocopying expenses.
Whenever possible, information should be released in formats that allow users to
manipulate and analyse it (database formats, spreadsheets, etc.) and the practice of
transforming information into static, hard-to-manipulate formats should be ended. In
the same vein, there should be modern, Internet-based methods of monitoring and
tracking requests.
2.5. The current system requiring access requests to be submitted by letter should be
replaced by electronic systems such as email and web pages.
2.6. In addition, there should be no fee associated with requesting information,
simply because it is an exercise of our fundamental human right to freedom of
expression. According to former Commissioner Robert Marleau, it costs $55 to
process the $5 check currently required; eliminating application fees would save
money for both requesters and the government.
2.7. Similarly, since it is the duty of government to release information to the public
— information that in the first instance was created at taxpayer expense and for the
societal benefit of the taxpayer (among others) —costs associated with searching for
information and/or copying should be set at market rates or lower. Furthermore,
when response times exceed stipulated deadlines, costs should be dismissed as a
penalty to the government institution for failing to meet its obligations.
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2.8. As an efficiency measure, a system such as CAIRS (the Coordination of Access
to Information Requests System) should be re-established to allow users to access a
centralized (consolidated government-wide) database of completed requests.
3) Exemptions
3.1. Under the current ATIA much attention is spent on codifying how the
governments and its agents can refuse to release information under a wide range of
exemptions. Many exemptions are mandatory, wherein the government department or
agency does not even need to show that harm would be caused by releasing the
information. Even where exemptions in the Act are defined as discretionary, often
there is no test of injury.
This approach needs to be turned on its head. As it the practice around the world,
under most modern access laws, all exemptions or limitations should be
discretionary and subject to both an injury test and a public interest override.
Therefore, the ATIA should be amended so that information is refused only when all
of the following conditions are met:
(a) It is in the protection of a legitimate interest;
(b) Its release would be harmful to this legitimate interest;
(c) The likely harm outweighs the public’s interest in the specific information.
Such a framework has been proposed before, as in the 2006 election platform of the
Conservative Party of Canada:
“A Conservative government will…Ensure that all exemptions
from the disclosure of government are justified only on the basis of
the harm or injury that would result from disclosure, not blanket
exemption rules.”9
We readily admit this concept adds another dimension to the application of
exemptions and would be especially relevant in relation to national security,
international relations and cabinet secrecy. When combined with the additional
powers to examine and potentially order disclosure of contested records (see below),
this may mean the commissioner may require some form of advisory body or group to
assist in the weighing of public interest vis a vis potential harm considerations and
there would have to be provision for appealing a commissioner’s decisions. However,
we believe the Federal Court has demonstrated a capacity to balance the trade-offs.
And we would point out that there is already some jurisprudence, with regard to libel
for example, wherein sometimes the right to privacy is overruled by the public interest
in disclosure. The underlying principle in all of this is that decisions on the release of
information should be reviewed by an independent, arms-length authority not
beholden to the politicians and public servants in the government of the day.
9
Stand Up for Canada, The 2006 Conservative Party federal election platform.
7
3.2. There has been a proliferation of additional exemptions since the ATIA was
proclaimed in 1982, but the CCWPF submission will concentrate on five areas of
concern.
A) BUDGET INFORMATION
Under current practice, budget secrecy is used as a blanket exemption for any records
or information related to the preparation or implementation of budgets, which goes far
beyond the basic justification of budget secrecy intended to prevent exploitation of
budget information for private gain. This concern is primarily relevant in the period
immediately preceding the budget release and should not be justified once the budget
becomes public. Furthermore, under the current practice, budgets have become
omnibus bills containing a wide range of measures that have little to do with the
limited need for budget secrecy in the period before tabling. Once the budget has been
released, all of the reports, studies, statistics, and documentation that went into it
should be accessible with the exception of the narrowest of Privy Council
confidences, such as the deliberations among ministers in the budget preparation.
B) INTERNATIONAL RELATIONS
This exemption has been widely used to prevent disclosure of much information about
the development and implementation of Canadian foreign policy with a subsequent
impact on limiting public understanding and debate. Government departments and
agencies claiming the international relations impact exemption should be required to
demonstrate how disclosure will cause harm to Canada’s foreign relations before the
exemption is accepted.
C) NATIONAL SECURITY AND DEFENCE
This exemption has also been used as an umbrella to protect a wide range of
government activities from public scrutiny, often for the convenience of departments
and agencies, or to avoid political embarrassment. Far too often information is
withheld based on the argument that its disclosure would impair relationships with
other governments and their intelligence agencies on which Canada depends to
protect Canadian security. Frequently this exemption is claimed even when the
information sought has been made public by our allies. The amendments to the ATIA
contained in the Anti-Terrorism Act hastily passed by Parliament in the months
following the 9/ll attacks created another blanket exemption through which to claim
exemptions and excluding the Information Commissioner in this important area.
Experience in the subsequent 12 years suggests much of the apprehension in the 9/ll
aftermath has not been borne out. Section 15 of the ATIA which deals with
"subversive or hostile activities" is adequate protection against harmful disclosure and
we believe the constraints in C-36 should be removed. Our principal thrust is that the
national security and defence exemptions, like the others we have identified, should
not be merely claimed but must be justified. This is a good example of why the
Information Commissioner should be given greater powers (see below) to be able to
review the information for which a national security exemption is being claimed –
otherwise it is impossible to evaluate its veracity.
Given the sensitivity of some of these matters, the Commissioner may sometimes
require the sanction of the Federal Court, which has acquired much experience in
these areas, before being able to order an agency or department claiming this
exemption to disclose.
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D) COMMERCIAL CONFIDENTIALITY
Many Crown Corporations and other government agencies are engaged in commercial
activity often in co-operation or competition with the private sector and they
frequently attempt to shield themselves from public scrutiny by claiming commercial
confidentiality. However, because Crown corporations often only exist to fill roles
that are not being adequately performed by the private sector, and because they often
function with the support of public funds, they must be subjected to a higher degree of
transparency than private-sector companies. Therefore, their ability to claim the
commercial confidentiality exemption should be more constrained.
E) CABINET SECRECY
The CCWPF recognizes that for efficient and effective government, some aspects of
cabinet activity must be shielded from the public eye, especially in the lead up to
cabinet taking a decision. And since the cabinet makes collective decisions that then
require the support of all ministers, some of the ministerial dialogue must be
protected. But currently the exemption for Privy Council confidences is being claimed
for any or all information that has been submitted to cabinet in the process of decision
making, long after decisions have been taken.
As a number of observers have noted, when the federal government invokes the Privy
Council exclusion (Section 69) it excludes “a broad swath of material that once was
readily accessible.” We fear so-called “cabinet confidences” are hiding more than
strictly cabinet documents. If such black holes are allowed to exist without
scrutiny, more and more information will migrate there for protection from
public eyes.10
We believe the Privy Council exemption must be more clearly defined and
constrained and made subject to a harms test and a public-interest override. While the
necessity to protect cabinet collegiality is accepted, it does not justify a wholesale
exemption for all records pertaining to cabinet decision-making. There is no reason
why the base information, documentation, and studies that underlie cabinet decisions
cannot be separated from the advice to ministers from public servants that may need
protection. Indeed there has been discussion in the past of splitting memorandums to
cabinet into one section containing advice and recommendations and a second section
with the background facts and studies that can be released after the decision is taken.
4) Appeals and the Powers of the Commissioner
Currently, the Information Commissioner essentially functions as an ombudsman
whereas in many foreign jurisdictions — and in British Columbia, Alberta, Ontario,
Quebec and Prince Edward Island — the commissioner operates as an order-making
tribunal.
4.1. The Canadian Committee for World Press Freedom believes there should be
substantive strengthening of the powers of the Access Commissioner, both with
10
See Dean Beeby’s submission to the Information Commissioner of Canada for ATIA
reform, November 19, 2012.
9
regard to administrative procedures and with regard to the right to examine
contested records to determine if they qualify for exemption. The Information
Commissioner should have the power to order disclosure if the requested records do
not, in the opinion of the commissioner, qualify for the exemption the department or
agency is citing to justify its refusal to disclose. The commissioner’s right to examine
requested records should be comprehensive with only rare exceptions — possibly, for
example, in the case of ultra top secret records relating to national security. These
enhanced powers must go hand-in-hand with revised, narrowly defined
exemptions.
4.2. On administrative matters, the Commissioner should be able to determine if a
department or agency’s request for an extension beyond the statutory requirement of
30 days for disclosure is justified and if not be able to impose some form of penalty or
reprimand. As we suggested earlier, one such penalty could be to dismiss all fees if a
public body fails to meet its timeline obligations.
4.3. In the current Access regimen, the commissioner may recommend disclosure but
if that recommendation is not accepted by the withholding public body, the requester
can seek redress in Federal Court and on occasion, the commissioner will join the
requester in his or her Federal Court pursuit. Our committee believes the onus
should be reversed. If a department or agency wishes to defy a commissioner’s
order to disclose, the onus should be on the department or agency to contest the
disclosure order in Federal Court.
4.4. The commissioner should also be able to define what and how records are kept
including the disclosure of indices and other tracking tools.
Conclusion
It is time to bring Canada’s Access to Information Act into the 21st century and to
restore Canada’s former leadership in this field.
Reform of our access legislation must be accomplished as part of a broader paradigmshift that dismantles the culture of secrecy and replaces it with a philosophy that
release of information will be the norm, limits on information the exception. The
federal government must issue clear instructions that within the government, and its
Crown Corporations, institutions and agencies, all personnel have a duty to create
records. Reform means adopting a customer-service mentality that does not treat
requesters as presumed hostiles but rather as citizens exercising their democratic
rights. Modernization requires that information systems are designed to facilitate
access, and digital technologies are employed for submitting requests, monitoring
their progress and delivering information. Specific amendments to Access legislation
must go hand in hand with the granting of order-making powers to the Information
Commissioner.
Above all, access to information must not be seen as a privilege, but rather as a
fundamental right.
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