The FAA had only limited benefits for transparency. The current government should move ahead with the long-awaited reform of the Access to Information Act.
In the aftermath of the sponsorship scandal, increased accountability became a key campaign promise in the 2006 election. The Conservative Party’s platform proposed a plan that would, if implemented, fix some of the Access to Information Act’s (ATIA) longstanding flaws and significantly strengthen the legislation. The plan included
- extending the coverage of the ATIA to organizations that spend taxpayers’ money or perform public functions;
- a duty to document actions and decisions;
- withholding information only on the basis of injury or harm from disclosure;
- placing the public interest before the secrecy of government;
- giving the information commissioner (the commissioner) the ability to review cabinet confidences and to order the release of information; and
- ensuring that the disclosure requirements of the ATIA cannot be circumvented by secrecy provisions in other federal acts.
Once elected, however, the government of the day adopted a two-step approach. First, the Federal Accountability Act (FAA) amended the ATIA to introduce a legal duty for institutions to assist requesters, extend its coverage to a number of new institutions and introduce safeguards for these new institutions.
Second, the government tabled a discussion paper in Parliament in the hopes that the Standing Committee on Access to Information, Privacy and Ethics would launch a comprehensive study of the issues and consult with a broad range of stakeholders. Many committee members voiced strong concerns with undertaking another review of the ATIA, and the committee never studied the discussion paper.
The FAA added a number of institutions to the application of the ATIA, including seven Crown corporations, seven agents of Parliament, five foundations, and other organizations such as the Canadian Wheat Board. (Although the FAA extended the coverage of the ATIA to about 69 new institutions, 55 were subsidiaries of Crown corporations.) As there were no specific criteria used to identify which institutions were to be covered, this amendment stopped short of applying the ATIA to all organizations that spend taxpayers’ money or perform public functions. For example, administrative bodies supporting Parliament and the courts were not covered.
Overall, these new institutions represent only a small portion of all access requests received across the government. For example, in the last five years, they have received less than 2 percent of the total number of requests made to the government.
At the same time, the FAA also introduced a number of institution-specific exemptions and exclusions that limited the impact of the extended coverage. Many of the institutions to be covered by the ATIA argued at the time that they needed additional protections to address their unique characteristics. These limitations included new exemptions that were, in most instances, mandatory and not limited in time. These new exemptions and exclusions did not include an injury test or a public interest override. They created, however, an exemption scheme that was parallel with other exemptions already in the ATIA and that applied more generally to all government institutions. As a result, these additions introduced an increased level of complexity to the ATIA and led to institutions concurrently applying multiple and overlapping exemptions for the same information. This has also caused legal uncertainty in the interpretation of these new limitations and, consequently, an increase in complaints and litigation.
For example, in a matter between the Canadian Broadcasting Corporation (CBC) and the Information Commissioner of Canada, the Federal Court of Appeal confirmed the commissioner’s ability to review records that may fall under the new exclusion (section 68.1). In this case, the CBC argued that, since records subject to section 68.1 were excluded from the ATIA, the commissioner did not have the right to examine them during the investigation of a complaint.
In the 2009-10 special report to Parliament, Open Outlook, Open Access, we reported on the start-up efforts of eight new institutions that have met the challenge of becoming subject to the ATIA with varying degrees of success. Of the new institutions, the CBC and the Canada Post Corporation were, by far, the targets of most complaints to the Office of the Information Commissioner and had the most difficulty meeting their legislated requirements.
Although extending the coverage of the ATIA was a step in the right direction, the FAA failed to deliver on its promises and to address longstanding issues with the ATIA related to timelines, disclosure of information and oversight. As a result, it had only limited benefits for transparency and accountability. The fact that the broader reach of the ATIA was met with increased protections against disclosure further perpetuated the ATIA’s imbalance in favour of government secrecy. (The impact of the new exemptions and the exclusion scheme for FAA institutions can be seen in the statistics collected by the Treasury Board since 2007-08. These institutions consistently disclosed less information in full than the overall average across the government.)
In March 2015, we tabled a special report in Parliament, which contains 85 recommendations to modernize the ATIA. It concluded that the ATIA does not strike the right balance between the public’s right to know and the government’s need to protect limited and specific information. In the report, we recommend the following measures to comprehensively modernize the ATIA:
- extend coverage to all branches of government, including ministers’ offices and bodies that provide administrative support to Parliament and the courts;
- improve procedures for making access requests;
- set tighter timelines;
- maximize disclosure;
- strengthen oversight by adopting an adjudicative model (with order-making powers), accompanied by the explicit authority to resolve appeals through mediation; other powers should include the ability to carry out compliance audits, and to conduct education and research activities;
- disclose more information proactively;
- add consequences for noncompliance; and
- ensure periodic review of the ATIA.
The new government was elected last October on a platform of openness and transparency. On March 31, 2016, it announced a two-phase process for improving the access to information regime. First, it will introduce a Bill to implement its platform commitments and other amendments that will be identified through consultations. Second, in 2018 it will conduct a full review of the ATIA. It is hoped that history will not repeat itself and that the government will move forward on a long overdue comprehensive reform of the ATIA. Canadians deserve a strong framework that will protect their democratic right to hold their government accountable.
This article is part of The Federal Accountability Act: Ten Years Later special feature.
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