As federal officials’ use of Section 69 surges, immediate reform should empower the information commissioner to review what’s being withheld.

In a report issued in January, federal Information Commissioner Caroline Maynard highlighted a number of serious shortcomings with the Access to Information Act.

Particularly disturbing is a surge in use by government officials of a large loophole, Section 69, which excludes cabinet confidences from the documents that can be released to the public.

According to figures released by the commissioner, these claims have gone up almost 50 per cent from 3,122 in 2014-15 to 4,660 in 2018-19, the last year for which statistics are available.

Maynard is just the latest Information commissioner to call out the accelerating use of this loophole. In her 2014-15 annual report, former commissioner Suzanne Legault found: “Institutions invoked Section 69 more than 3,100 times in 2013-2014. This is a 49 per cent increase from 2012–2013, which followed a 15 per cent jump the previous year.”

So why are government officials so enthusiastically claiming that records requested under Access to Information are cabinet documents?

Section 69 of the act states: “This Act does not apply to confidences of the Queen’s Privy Council for Canada.”

What that means is that if the government claims that a record requested through Access to Information is a cabinet document, then not only is the document not released, but neither the information commissioner nor the courts have the right to look at the document to determine whether the government’s claim is valid.

As Maynard points out, this results in two major problems.

First, it “shields Cabinet confidences from the Commissioner’s independent review, depriving requesters of a level of review.”

Second, it “leads requesters to limit the records they wish to obtain – indeed, requesters frequently stipulate, either in their access request or after being asked to do so by the institution, that they are not seeking information that may be considered a Cabinet confidence.”

As a result, “it is impossible for me to determine objectively and independently if the records indeed contain Cabinet confidences,” she added.

This means government officials essentially have a free hand to refuse to release any record they don’t want to release simply by calling it a cabinet confidence, secure in the knowledge that the law prevents anyone outside government from ever looking at it and challenging their refusal to release it.

Obviously, this ability to block any release of requested material with no review whatsoever just by stating it is a cabinet confidence makes this section ripe for abuse by government officials.

But surely public servants wouldn’t make improper use of this loophole – or would they?

Unsurprisingly, the number of legal privilege claims made by government officials skyrocketed until that decision was overturned by the Newfoundland Court of Appeal in 2011.

In Newfoundland and Labrador, a trial court ruled in 2009 that the Newfoundland commissioner could not even examine records the government claimed were covered by legal privilege.

Unsurprisingly, the number of legal privilege claims made by government officials skyrocketed until that decision was overturned by the Newfoundland Court of Appeal in 2011.

An official with the Newfoundland information commissioner’s office told an amazing story to the commission reviewing the Newfoundland ATI law about why the number of legal privilege claims shot up.

Part of it reads: “… [the public official] said yes, we thought we’d claim [legal privilege] because we just heard about this court decision, and we heard that you can’t review claims of solicitor-client privilege, so we thought we’d claim it.

“…we were flabbergasted…but it’s a fact that a head of a public body actually admitted to us  that the reason they claim that section of the Act, solicitor-client privilege, was because we couldn’t review it.

When the Newfoundland information commissioner’s office was finally able to review files where privilege had been claimed (after the Court of Appeal had reversed the trial decision), it found that 80 per cent of the purported legal privilege claims “had nothing to do with solicitor-client privilege whatsoever.”

Although there is no way to prove that the same thing is going on at the federal level with claims of cabinet confidence, there is also no way to verify that it is not happening. But the similarities are disturbing.

So, what can be done about this situation?

The protection of cabinet confidences is recognized not just in the Access to Information Act but also in common law generally. However, it is not absolute. It is a flexible concept and can be waived by the government if it chooses to do so.

There have been several situations where the government has done exactly that, usually because that serves its needs at the time.

One recent example is the SNC-Lavalin controversy, where the prime minister selectively revealed cabinet discussions with then-justice minister Jody Wilson-Raybould but refused to talk about other cabinet discussions that might not have looked as favourable for him.

There have been numerous situations where auditors, inquiries and others have been allowed access to cabinet documents. There have also been self-serving leaks from the government when it sees fit.

According to the statistics, the black hole that is the use of Section 69 is clearly expanding.

There is a need for immediate reform, and it is essential that any serious reform provide the commissioner with the power to review the requested documents to determine if the government’s claims are valid and lawful.

Provincial information commissioners have been examining claims related to provincial cabinet confidences for decades and those governments have managed to continue to function. Responsible government has not collapsed in those jurisdictions.

The federal government should be closing this black hole, not making excuses.

Photo: Shutterstock.com, by Crevis