The federal government rejected a plan to reform Canada’s ailing access to information regime, and instead, against the advice of bureaucrats, embarked on a limited internal review that produced no substantive change.
The plan, devised by the Treasury Board and described in a series of internal memos beginning in 2019, involved appointing a team of independent experts to study the Access to Information Act, the legislation that underpins the federal access system, and come up with major changes to it.
Rather than doing that, Ottawa pursued a more modest process led by government staff, even though the Treasury Board had warned that such an internal review could lack legitimacy and harm public faith in the government. The eventual results were widely criticized by transparency advocates.
The federal access to information system is intended to promote government transparency by allowing anyone to request internal documents from public institutions. But Secret Canada, a Globe and Mail investigation of access regimes at all levels of government, has found that institutions routinely fail to disclose requested documents by legally required deadlines, and frequently withhold information improperly.
These and other problems have also been identified by advocates, watchdogs, Indigenous groups, parliamentary committees and the federal civil service. Federal Information Commissioner Caroline Maynard has warned that the system has faced such a “steady decline” that “it no longer serves its intended purpose.”
When Justin Trudeau first became Prime Minister in 2015, he promised the largest overhaul of Canada’s federal access regime since it was implemented in 1983. He pledged to reduce delays in the system, reduce the government’s ability to withhold information and extend the access legislation to cover ministers’ offices – including his own.
Mr. Trudeau has not made good on those promises. His government’s only package of access reforms, passed in 2019, was widely panned for being too narrow. But that legislation required the government to conduct a full review of the Access to Information Act within one year.
The Treasury Board plan was intended to satisfy the need for such a review. The internal memos that describe the idea were obtained recently through an access to information request filed more than 3½ years ago.
The plan, submitted by civil servants in the Treasury Board Secretariat in late 2019, offered Jean-Yves Duclos, who was then president of the Treasury Board, two options: conduct an internal review of the Access to Information Act, or outsource the study to an independent panel of experts and make “meaningful changes to the current regime.”
The Treasury Board team made no secret of their preferred solution. “An independent expert panel would add credibility to the review process from a public perspective,” they noted in the documents.
The team at the Treasury Board went so far as to draw up a long list of potential members for the independent advisory group. They sought to appoint four members: one “respected public figure” as the chair, an academic, a representative from the media and an Indigenous advocate.
A final shortlist, submitted in January, 2020, put forward 12 names, among them Karyn Pugliese, then-president of the Canadian Association of Journalists; Kirsten Smith, a former newsroom librarian with experience on access issues; and former senator André Pratte, who had proposed a raft of legislative changes to the federal access legislation during his time in the Senate.
The Treasury Board also submitted a list of possible legislative amendments, many of which experts and advocates had been recommending for decades.
But the panel was never appointed and the legislative changes were never formally put forward. Six prospective panel members told The Globe they had never been contacted, and had no idea that their names had even been brought up.
“I would have rolled up my sleeves and helped,” Ms. Pugliese said. “Gladly.” The fact that she was considered, given her record as an advocate for both journalists and Indigenous peoples, showed “someone inside cared sincerely about fixing the system,” she added.
The Treasury Board warned the government against choosing the other option, an internal review. “Any benefits of having a government task-force do the [Access to Information Act] review are out-weighed by the risks,” board staff wrote in an October, 2019, memo. They cautioned that “external stakeholders would perceive it as lacking independence and therefore find its recommendations less credible.”
A lack of credibility, particularly after criticism of past consultations on access to information, could carry “a risk that the public will lose trust in the Government more broadly, not just on this issue,” the memo added. And an internal review led by staff could “lead to temporary staffing shortages among the teams they were pulled from, thus negatively impacting those teams’ work output.”
If the government opted for an internal review, the Treasury Board memos said, appointing at least one external adviser could help lend the process legitimacy.
In May, 2020, the government unveiled its internal review process, run entirely within the Treasury Board, without an external adviser. The review consisted of an online consultation portal, consultations with Indigenous groups and virtual roundtables.
The online consultations netted just a few dozen submissions, while the roundtables were met with frustration by participants.
It’s not clear why the government opted to reject the Treasury Board recommendations. The documents obtained by The Globe end in mid-January, 2020, when the access to information request was initially made. Treasury Board spokesperson Barb Couperus acknowledged in a statement that different strategies for the review were considered, but that an internal task force “presented a cost-effective and comprehensive approach to support the review process.”
The review concluded with a report published this past December. It makes clear that the government does not intend to pursue any legislative changes to the Access to Information Act, and even claims that the “ATIA can shift away from being seen as the sole option for those seeking government information.”
When she appeared before a House of Commons committee in April, Mona Fortier, who was then president of the Treasury Board, sought to “clear up a misunderstanding” about her government’s review. “The purpose of the report was to identify challenges, not to develop a plan,” she said.
The report rankled transparency advocates, who pointed to dozens of studies and reports published in recent decades that have detailed the various challenges facing the access system.
“When it comes to the right of access, the status quo is unacceptable and Canadians deserve better,” Ms. Maynard, the Information Commissioner, said in a news release after the report was published.
Monica Granados, a spokesperson for current Treasury Board President Anita Anand, declined to answer a question about why the government had disregarded the board’s advice, except to say “there were many discussions about potential components of the access to information review.”
Ms. Granados said the final report “outlines key areas of focus to improve service to Canadians, increase trust in our institutions, and advance reconciliation. It will inform future work to strengthen the system.”
Ms. Pugliese disagrees. The current system, she said, “serves governments who don’t want scrutiny.” The only thing standing in the way of reform, she said, is a lack of political will.