Transparency advocates testifying before a House of Commons committee on Wednesday called for major changes to federal access-to-information legislation to break the government’s “culture of secrecy.”
Access experts Allan Cutler, Duff Conacher and Ken Rubin each testified and answered questions at a meeting of the House committee on access to information, privacy and ethics, and took turns lambasting the public service, government policies and the Access to Information Act, the 1983 law governing federal access requests.
Mr. Cutler, an advocate for whistleblower protections and former president of Canadians for Accountability, noted the significant delays experienced by some people filing requests. “The idea of getting information in a timely fashion has been thrown out the window,” he said. The government doesn’t care, however, “because they know nothing will happen if they don’t do it.”
“I can’t do anything about it,” Mr. Cutler continued. “You are the only people who can do something about that.”
Access-to-information laws – often called freedom-of-information laws in provincial jurisdictions – exist at all levels of government in Canada, and allow those filing requests to formally demand the disclosure of otherwise-secret government records. Access requests are routinely filed by businesses, researchers, journalists, lawyers and others seeking to learn more about government decision-making.
“The Access to Information Act is broken,” Mr. Conacher told the committee in his opening remarks. Mr. Conacher is co-founder of Democracy Watch, a government accountability advocacy group. His submission to the committee included a list of 18 proposed changes to federal law and policies. Among the proposed changes: limiting the time extensions government institutions can seek while processing a request; the elimination of the $5 initial filing fee; that the law be expanded to cover all “public institutions” that perform operations for the public or are funded by the government; and strictly limiting when information can be withheld or redacted in response to access requests.
“Government secrecy is a recipe for corruption, waste, abuse of the public and decisions that protect private interests and violate the public interest,” he told the committee. “All that secrecy adds up to bad government decision-making.”
Mr. Rubin, an Ottawa-based activist and access-to-information advocate, took issue with a continuing review of the Access to Information Act by the Treasury Board of Canada Secretariat, which began in June, 2020, and is separate from the committee hearings on access to information. Mr. Rubin said he boycotted the Treasury Board’s review, calling it an “expensive roadshow intent on keeping greater secrecy in play.”
“All they want to do is promote their idea of proactive disclosure,” he said, referring to the government practice of making records public automatically, without the need for access requests. ”They don’t want real change.”
Mr. Rubin gave the example of briefing notes, high-level government documents summarizing issues for ministers, which are often the subject of access requests. The government began proactively disclosing the titles of briefing notes several years ago, but since then, the notes have become “sanitized talking points,” he said. “It’s a farce.”
The committee has been conducting a parliamentary study of the federal access regime. Earlier this month, the committee heard from Information Commissioner Caroline Maynard, who said “nobody’s doing great” on access issues and warned she’d need more resources to better oversee the system. On Monday, lawyer and leading access law expert Michel Drapeau told the committee that the Office of the Information Commissioner (OIC), which adjudicates access disputes, was itself a bottleneck, exacerbating delays.
He accused the organization of being “top heavy” and said it has now become routine for the OIC to take at minimum two years to process files, though it’s not uncommon for cases to stretch years longer. He told the committee that if the OIC can’t produce a finding within a year, citizens should be able to take their fight directly to the regular court system.
In an interview with The Globe, Ms. Maynard raised concerns about this approach.
“I’m not sure how many people have the ability – financially and also legally – to represent themselves in front of the court,” Ms. Maynard said. She added that her office is able to advocate for those requesting information from federal institutions.
Ms. Maynard was the first person to appear before the committee earlier this month. She testified that her office was on track to receive 10,000 complaints this year – a new record. This, she says, is the problem.
“Since I was appointed, my number one priority was to get rid of the backlog and to be more efficient,” she said. “I shifted all of my resources into investigations.” Last fiscal year, the OIC closed 70 per cent more files than usual, but this progress has been obscured as more complaints have poured in.
Help The Globe and Mail investigate Canada’s broken freedom-of-information regimes. We’re looking to speak with people who use and interact with the system at all levels of government. Are you a current or former FOI analyst? A public servant? A citizen, academic, researcher or advocate who has filed requests? Are you a current or former appeals adjudicator? A lawyer with experience in this area of law? We want to talk to you. You can get in touch with us at email@example.com.