The Supreme Court has ruled that the offices of ministers and the prime minister are beyond the reach of Canadians' legal right to know, prompting the Information Commissioner to ask Parliament to fix the access law.
"There are certain records that are documenting government decisions that are no longer going to be available for disclosure to Canadians," said federal Information Commissioner Suzanne Legault. "I think it's clear that the act needs to be amended."
In a major decision, the court decided that Canada's Access to Information Act does not apply to the records controlled by the people at the top of the government's power pyramid: the prime minister, cabinet ministers, and their staffs.
And though the current Conservative government promised in the 2006 election campaign to ensure that ministers' offices would be subject to the access law, it fought that principle in court.
The court's ruling ended a 10-year court battle over access to four sets of ministerial records - the most prominent a request for the agendas of Jean Chrétien when he was Liberal prime minister, the most substantive a request for notes that documented a 1999 meeting between the defence minister, his deputy minister, and the chief of the defence staff.
Ms. Legault said the latter case pointed to a gap that should worry Canadians. Notes taken by an aide to the defence minister were the only record of an important meeting between the minister and his top official and general. With the aide's notes not subject to the access law and no civil service record of the meeting, there is no documentation that the public could obtain.
Experts on the access-to-information regime said the ruling raises fears of greater secrecy in an already secretive system, and that the public may no longer be able to see records about such things as political interference in arms-length decisions, spending directed from minister's offices, or even the identities of people who work in ministers' offices. And they raised fears that the ruling will allow governments to keep more information secret by not sharing it with bureaucrats and government departments.
"It certainly increases … the ability of a minister and a government to further restrict the boundaries of access," said University of Ottawa law professor Michel Drapeau.
Madam Justice Louise Charron, writing for a unanimous Supreme Court, declared that it was not the court's job to decide how access laws should work, only to interpret the law Parliament wrote.
"As the government rightly argues, such interpretation would dramatically expand the access to information regime in Canada, a result that can only be achieved by Parliament," she wrote.
The ruling turned on the question of whether ministers' offices are "government institutions" - part and parcel of the department they oversee. The court decided Parliament did not intend to include ministers' offices as government institutions covered by the act, and subject to the same scrutiny as the bureaucracy.
The court rejected arguments that the ruling would create what it called "a black hole" in the right to know by allowing the government to make sensitive records inaccessible by keeping them in the PMO or a minister's office. They said that even if the records are physically in a minister's office, ministerial documents relating to the business of government departments would be subject to the law if they are available to civil servants on request.
But Ms. Legault suggested Canadians can't be sure that the government won't simply remove some records from the view of bureaucrats. "When you have a situation like that, it leads to potential abuses," she said.
The case, in a sense, pitted the current Conservative government against its own past.
The request for Mr. Chrétien's agendas was made by then-Reform Party researcher Laurie Throness, who is chief of staff to outgoing Transport Minister Chuck Strahl.
In 2006, after the sponsorship scandal revealed that when the Chrétien government was in power, public money was spent to aid the Liberal Party, the Conservatives won election on a platform that included a pledge to make ministers' offices subject to the Access to Information Act for records relating to their departments.
Once in power, the Conservatives dropped those plans. Pamela Stephens, a spokeswoman for Justice Minister Rob Nicholson, said on Friday the government is studying the decision.
But the Opposition NDP said it will propose an amendment to the access law to clarify that ministers' offices are not excluded. "The legislation needs to be fixed," said New Democrat MP Paul Dewar.
Ms. Legault, the Information Commissioner, said the court's ruling will lead to lengthy investigations and costly court cases to test the limits of the public's right to know, and the simplest and least costly choice would be to change the law.
She noted that two studies have already found Canada's freedom-of-information regime lags those of other democracies. "It's clear that we have a dismal situation at the federal level," she said. "It needs to be reformed."
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