Why do citizens need access to information held by the government? According to the 1977 Green Paper that essentially brought us our federal law, "Open government is the basis of democracy."
Why do we need access-to-information laws? Because the government has strong political incentives to prevent the disclosure of potentially embarrassing and damaging information.
The Supreme Court of Canada recently stated, in H.J. Heinz Co. of Canada Ltd. v. Canada, that the federal act was intended to increase government accountability "by ensuring that access to information under government control is a public right rather than a matter of government discretion." This is why the starting point of the law is a right of access.
This access is then subject to a number of specific exemptions that permit legitimate countervailing interests to be taken into account. There are many such interests, including national security and law enforcement. Political embarrassment is not on the list; nonetheless, it has managed to find a comfortable home.
One of the central problems with our access laws is that many important exemptions are discretionary. This means that the government "may" disclose the information that falls under such an exemption, but does not have to. In theory, this permits more disclosure than mandatory exemptions, but the problem lies with who exercises the discretion to disclose. The answer? The very government that might be embarrassed by disclosure.
The 2002 Access to Information Review Task Force confirms that even where the law does not explicitly say so, the government must take the public interest into account when exercising its discretion to refuse disclosure: "Discretionary exemptions already imply a balancing of the public interest in protecting the information, and the public interest in disclosure." Who has strong political incentives to prevent the disclosure of potentially embarrassing and damaging information despite the public interest? The government.
But what actually prevents the government from allowing political embarrassment to interfere with the responsible exercise of discretion? Legally speaking, very little. Judicial review of discretionary decisions is notoriously deferential.
Usually, such deference is highly appropriate, as the decision-making body that is granted discretion often has specialized knowledge and expertise. In this case, it is a perverse consequence of a poorly designed regime: Those who have the strongest conflict with the public interest are precisely those empowered to determine the public interest.
The Supreme Court of Canada has not yet released its decision in Ministry of Public Safety and Security et al. v. Criminal Lawyers' Association, a case dealing with Ontario's access laws and the scope of its public interest override. The court may find a Charter right of access to information and require changes to the legislation that strengthen the role of the information commissioners and courts in determining the public interest. This would be welcome. However, courts alone cannot cure all that ails the regime.
The problem of government discretion, built into the very structure of the law, is exacerbated by the numerous other ways in which the government can manipulate the processing of requests to avoid political embarrassment.
Many of these have been documented by the current interim information commissioner of Canada, past information commissioner reports and numerous media stories. They include creating administrative processes and pressures that interfere with the independence of access to information co-ordinators. They include not creating records in the first place if there is a worry that they might be subject to an access request. They include simply not providing the funding and leadership to make the access regime work.
In 2005, then-information commissioner John Reid proposed many important changes to the legislation that would radically improve the transparency of the federal government, but the government failed to act on these recommendations. In opposition, parties often advocate for the reform of access to information laws. In government, they rarely carry this through. The reasons are obvious.
But just as the current political context has provided us with ample evidence of Canada's lack of open government, it can also provide us with its political solution.
The government is outnumbered. Perhaps the other parties will join together and do the right thing: Reform the legislation.
Lisa M. Austin is an associate professor in the law faculty at the University of Toronto.