Submission from World Press Freedom Canada (WPFC) to Treasury Board’s review of the Access to Information Act (ATIA)

June 2021

Please accept the following brief from World Press Freedom Canada (WPFC) in response to the invitation from the Hon. Jean-Yves Duclos, president of the Treasury Board of Canada, on March 31, 2021, for public submissions to the current review of the Access to Information Act and its administration.

WPFC was incorporated in 2008 as a non-profit body that monitors press freedom issues nationally and globally. Our Ottawa-based group advocates for freedom of expression, identifies violations, pro-actively defends freedom of the press, and raises pubic awareness of the importance of freedom of expression. Our membership consists primarily, though not exclusively, of journalists who support these goals. WPFC is also a member of the Right to Information Alliance Canada (RTIAC), a group of like-minded organizations pressing for reform of transparency legislation and practices.

The Access to Information Act, passed in 1982 after two years’ of study, has been on a steady decline ever since it became law. Its flaws became apparent early, and numerous efforts at reform foundered as successive governments declined to act. Occasional amendments over the period 1983-2021 often weakened transparency rather than strengthened it. In 2006, for example, the law was changed to keep draft audits secret [22.1 (1)]. This restriction was among the very few recommendations the government acted upon following the 2002 report of the Access to Information Review Task Force, a $3-million exercise that changed little.

Over the years, governments have passed new laws with their own secrecy provisions, which have added to the pool of information impervious to the Access to Information Act. In 1983, there were 33 statutes that expressly protected some kinds of government information from requests under the Act. Today, there are 65 such statutes, each incrementally eroding the access law. Timeliness has also been eroded. Parliament in 1982 expected most requests for information under the Access to Information Act could be satisfied within 30 days, with few exceptions. Today, only about half of requests are completed within 30 days.

Bill C-58, which became law in June 2019, contained the “most significant amendments to the Act since 1983,” according to Treasury Board President Jean-Yves Duclos. The claim is debatable, but what is clear is that the bill further constrained the rights of requestors. Federal institutions and the Office of the Information Commissioner are now empowered to disregard certain requests and complaints as “vexatious,” for example, with no definition given. Numerous critics warned that the bill weakened the law in other important respects, failed to deliver on specific promises made to Canadians in the 2015 federal election, and left dozens of secrecy loopholes in place. Thus Canada’s primary transparency law remained weak and ineffective just as the COVD-19 health emergency hit in March 2020. At the very historical moment during which Canadians required assured access to a stream of government information for their safety, the pipelines were rusted and clogged from years of deliberate neglect.

The numerous flaws in Canada’s access-to-information regime can be reduced to just two: the law provides far too many reasons to keep information secret; and releasing information takes far too long.

On the first issue, the law does not even apply to the most important sources of government information. Cabinet documents and records in minister’s offices – including in the Prime Minister’s Office – are excluded from the reach of the Act. These areas represent the core of decision-making and policy formation, and yet are entirely off-limits to requests from citizens. Further, Schedule II of the Act lists 102 other kinds of information – from transport and energy, to trade and defence – that by law cannot be released to requestors. This opt-out list has more than doubled in the years since the law was first passed, a creeping opacity that attracts little notice. Similarly, the increased outsourcing of government programs and services to third-party providers has also pushed information beyond the reach of the Access to Information Act.

Even information that is covered by the Access to Information Act can nevertheless be kept secret for dozens of reasons set out in the legislation. These exemptions have been routinely interpreted so as to withhold factual information. For example, Section 21, referring to “advice,” has been invoked to protect public-opinion polls and economic forecasts.

The law must be reformed to: include cabinet records and ministers’ offices within its ambit; reduce or eliminate Schedule II, and prevent further routine additions; cover outsourced government programs and services; and inhibit the ability of institutions to invoke exemptions by listing within the law the types of records that must be released. Such measures would not only increase fundamental transparency but would strengthen the role of the Information Commissioner of Canada as an independent arbiter.

The second issue, the problem of delays, has an obvious impact on journalists attempting to inform Canadians in a timely way about matters of public interest. The Act currently sets out only loose standards. An initial 30-day deadline is merely aspirational. Institutions can give themselves permission to exceed that deadline through self-assigned extensions, typically 60 days, 90 days or more (in one instance, at Library and Archives Canada, an 80-year extension). In a third of all requests currently (2019-2020), institutions fail to deliver records even under these lax standards, that is, they either do not respect the 30-day deadline or do not provide records before their extended deadline. The law is silent on the consequences for disregarding the law in this way, with no reference to penalties or sanctions. The Information Commissioner of Canada can order the release of overdue material, but cannot take any other punitive action. Federal institutions thus have little incentive to abide by reasonable deadlines. There is no clear limit to the length of extensions they can unilaterally invoke, and blowing past deadlines has no material consequences. The playing field is tilted in their favour.

The law must be reformed to include checks and balances, that is, to impose discipline on federal institutions’ legal obligations to provide timely responses to requestors. Institutions that violate legislated deadlines must face significant fines, and must thereby forfeit the ability to invoke exemptions to censor material. Tighter restrictions must be imposed on consultations with other federal institutions, a notorious driver of delays, by setting strict time limits and denying the consulted institutions any veto on releases if they violate deadlines. Pay packages of senior bureaucrats must be contingent on a properly functioning access-to-information unit that respects legislated timelines.

There are other issues that need to be resolved in the reform process: a public-interest override to ensure information about health, safety and environmental risks is made public, despite exemptions; a duty-to-document provision requiring public servants to record decisions and actions; a requirement to release records in their original machine-readable formats. But the two main issues cited above – excessive secrecy provisions, and excessive delays – are the most pressing, and most immediately threatening to freedom of the press in Canada. We urge the government to fix these transparency flaws quickly so that in the next national emergency, journalists and others can better inform Canadians and keep governments accountable.