The federal Information Commissioner and other access-to-information experts say a Supreme Court ruling denying the release of ministerial documents marks a significant reduction in government accountability and transparency.
Critics said Friday the ruling will allow the government to withhold any information simply by taking it out of the hands of a department and placing it in the closed confines of a ministerial office.
Some of the records the Supreme Court said could not be disclosed "were the only records of very important meetings that occurred between the Minister of Defence and the deputy minister of the Department of National Defence," Information Commissioner Suzanne Legault told a news conference Friday.
"I think Canadians should be seriously concerned that these meetings take place and that in this instance the only records of some of those records are no longer accessible."
Madame Justice Louise Charron said in a ruling released Friday that requesters have the right to be given "any record under the control of a government institution," which includes the Privy Council Office and all government departments.
But the Prime Minister's Office and other ministers' offices are not government institutions and documents held within them are not meant to be open to the same public scrutiny, the court ruled. Judge Charron said she was convinced a two-step test set up by the courts will provide a screening mechanism to ensure the government does not place documents in an inaccessible "black hole."
Ms. Legault said that test will impede her ability to obtain information from a ministerial office.
First, she will have to determine that the record being requested is in fact related to departmental business. Then she will have to ask if a senior official within that department reasonably be expected to be able to obtain those documents.
"I think this decision really complicates the test, the analysis, the investigation and the way to obtain the records and to determine what is clearly under the control of the government institution and what is clearly discloseable to Canadians."
When asked if there is anything to stop ministers from documenting more actions and payments inside their office and keeping those functions out of the hands of departmental officials merely to prevent the public from learning about them, Ms. Legault replied: "When you have a situation like that, it leads to potential abuses."
The "quickest, easiest, least costly" way of making the access-to-information system work properly, she said, would be to fix the law - something the Conservative government has shown little interest in doing.
A study released earlier this year by a pair of British Academics ranked Canada at the bottom of the pack when the effectiveness of its freedom-of-information laws were compared to four other parliamentary democracies: Australia, New Zealand, Ireland, and Britain.
University of Ottawa law professor Michel Drapeau said the Supreme Court ruling will not improve the situation. "It certainly increases the flexibility and increases the ability of a minister and a government to further restrict the boundaries of access," he said.
"Now that we know that the minister's office is out of bounds," he added, "you have to define how big is that office. Is it the minister and his director of communication? Is it the minister and his chief of staff? Or is it the minister's office and a lot of departmental staff that will come and be attached to it?"
Ottawa researcher Ken Rubin, who is one of the country's top access-to-information experts, said: "As a long time observer, and one who has been in court [to challenge ATI decisions] it means that this country, unless we actually drastically change the legislation, is in for even greater secrecy."
The ruling, he said, "just sets the bar lower for all kinds of records" that can now be denied because the government does not want them to be released. "If you want to avoid releasing things," Mr. Rubin said, "you just intertwine things and label them political."
The War Resisters Support Campaign has been trying for two years to use access laws to find out the name and work contact information of a government employee, possibly in a minister's office, who was monitoring the online communications of Canadian supporters of U.S. Iraq War resisters. This ruling make that quests even more difficult, Ken Marciniec said, a spokesman for the campaign.
"If ministers are able to withhold any information they choose simply by saying it belongs to their offices," Mr. Marciniec said, "it will be even harder to find out why Canadians' legal and legitimate online communications are being monitored or to determine if political staff are interfering in supposedly impartial, arms-length decisions like those that are made by immigration officials who depend on the Immigration Minister for their jobs."