It looks as if substantive changes are coming to the Access to Information Act (ATIA), but there are also signs that the government may be backing away from some of its election promises about openness and transparency.

Treasury Board President Scott Brison has been the point person for the government on this file, and he has already announced significant changes to the policies underpinning the law, including removing all fees except the $5 application fee and improving proactive disclosure. These are not trifles, and would eliminate the delays that access-to-information requesters experience when arguments about fees pause the document-release process. However, it is puzzling why they would insist on maintaining the $5 fee, since each of those cheques costs the government more than $50 to process.

The government’s consultation on reform of the ATIA will be open until July 1. The Commons Standing Committee on Access to Information, Ethics and Privacy has also been conducting hearings over the past couple of months, with a view to having a report ready sometime in June. Brison has promised legislation this fall or early in 2017 to bring in some “quick wins” for access to information, which these consultations are supposed to inform.

According to the minister, a full review of the ATIA won’t take place until 2018. That is the year before the next federal election, which raises the risk that the broader access to information reform may be put off until after the next election. This means the quick wins may be the only gains requesters will realize, since governments — of all political stripes — generally become less open and transparent the longer they stay in office.

Governments — of all political stripes — generally become less open and transparent the longer they stay in office.

The government posted some proposals for possible ATIA reform as part of the current round of consultations. As might be expected, these include the Liberal platform planks from the last election, but with some new elements. Some of these would have the effect of undermining the Liberals’ reforms.

For example, a key promise was to provide the information commissioner with order-making power (the power to order the release of government information), similar to what a number of the provincial commissioners already have, and for which the current information commissioner has been calling. However, the government’s proposals are now raising the possibility that the orders could be subject to an override by ministers. Meanwhile, in a move that had many observers scratching their heads, Privacy Commissioner Daniel Therrien has questioned the wisdom of his fellow agent of Parliament having order-making power, which could also slow down action in this area.

These ministerial overrides have been a source of great controversy in other jurisdictions, in particular the United Kingdom. The UK Supreme Court found that the section of the access to information law granting the override power “would be unique in the laws of the United Kingdom and would cut across two constitutional principles which are fundamental components of the rule of law, namely that a decision of a court is binding between the parties and cannot be set aside, and that decisions and actions of the executive are reviewable by the courts, and not vice versa.”

It would not be surprising that even if the Liberals had thought about this when developing their platform, they would not want to run on a transparency platform that proposed “Order-making power for the Commissioner (unless we think she’s wrong).” It is also not surprising that Commissioner Suzanne Legault stated that order-making power would be “a mirage” if a mistrial override was added.

It is not surprising that Commissioner Suzanne Legault stated that order-making power would be “a mirage” if a ministerial override was added.

Another major Liberal campaign commitment was they would ensure that ministers’ offices and the Prime Minister’s Office would be covered by the ATIA. Interestingly, in their proposals on this important improvement, the government adds the word “appropriately”: “ensure that the Access to Information Act applies appropriately to the Prime Minister’s and Ministers’ Offices.”

The government has not provided an explanation for why it added this word, or what it implies. Presumably the government would not have campaigned on “inappropriate” coverage in the ATIA of ministers’ offices and they PMO, so why the qualification?

The government has also floated the idea that departments be given the power to bar requesters by claiming their requests are frivolous or vexatious. This was not part of the platform, and if departments (instead of the commissioner) get to decide who is a frivolous or vexatious requester, public servants may have an incentive to punish requesters who are annoying or persistent.

There are also vital reforms that are not included. Most important are “cabinet confidences,” which are completely excluded from the ATIA. Cabinet confidences are supposed to cover discussions and recommendations involving cabinet and the Queen’s Privy Council. Currently, the commissioner and the Federal Court are effectively prevented from even looking at requests that include documents that are the government claims fall under the definition of a cabinet confidence. In her most recent annual report the Commissioner states that “Institutions invoked section 69 [the section that excludes cabinet confidences] more than 3,100 times in 2013–2014. This is a 49-percent increase from 2012–2013, which followed a 15-percent jump the previous year.” Provincial commissioners for decades have been examining records that governments have been claiming fall under the rubric of cabinet confidences without posing problems for responsible government, so why not the federal commissioner? If nothing is done to close this information black hole, the new improvements to access to information will be completely undermined.

Another vital reform that has not appeared in the government’s proposals is a legislated duty to document. Earlier this year, every information commissioner in the country called for a legislated duty to “document their deliberations, actions and decisions.”

They have now been joined by the BC Legislative Committee that is reviewing the provincial access legislation. It has just recommended the government put a duty to document into law.

With this type of pressure building, it would be odd, and possibly perverse, if the Commons committee failed to recommend a duty to document be included in the ATIA reform package.

And the committee’s report will be important. Scott Brison said before the parliamentary standing committee, “We will be taking seriously all the recommendations of this Committee. »

Hopefully the committee will go beyond what the government has proposed and call for some of the necessary improvements the Commissioner and others have recommended. If the committee doesn’t propose substantive changes, it could be a long time before there is another opportunity.

Photo: Shutterstock / tadamichi


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Vincent Gogolek
Vincent Gogolek is a retired lawyer and the former executive director of the BC Freedom of Information and Privacy Association.

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