The offices of the prime minister and federal ministers should no longer be exempt from access-to-information law, Canada’s former top public servant says, and there should be a greater onus throughout the federal government to pro-actively disclose as much information to the public as possible.
Speaking to the House of Commons committee on access to information on Monday, Michael Wernick said public servants are already subject to access requests and that this should be expanded to include all “taxpayer-funded political staff” including at the top levels of the federal government.
Across government, Ottawa should regularly disclose a raft of documents, including “awarded contracts,” completed grants, taxpayer-funded public opinion research, and the results of environmental and health and safety inspections, as well as product testing, he said in a written submission to the committee. The onus should be on releasing information “unless you can provide a reason not to,” he testified.
Mr. Wernick, the federal government’s top bureaucrat – the Clerk of the Privy Council – from 2016 to 2019, spent more than 25 years working in senior federal public-service roles.
During the 2015 federal election campaign, Liberal Leader Justin Trudeau vowed to make sweeping changes to access to information, including bringing ministers’ offices – including his own – under the access regime. Ministers’ offices in many provinces are already covered by freedom-of-information laws.
But when the Access to Information Act was amended in 2018, the changes did not bring federal ministers’ offices within the scope of the law.
Access-to-information requests allow people to ask for internal federal government records for $5, and are used by businesses, researchers, journalists, lawyers and others. Provinces have their own freedom-of-information laws.
There have been growing concerns about the state of the federal access-to-information system, both from people filing requests and the government itself.
Last year, nearly a third of access requests were completed after their legal deadlines, according to data from the Treasury Board of Canada Secretariat. The Office of the Information Commissioner has warned that it is on track to receive a record 10,000 complaints this year.
Although Mr. Wernick argued in his testimony on Monday for increased federal transparency, he cautioned against playing into the hands of foreign powers, including the Russians, Chinese and Iranians, by revealing sensitive government internal communications, such as about international negotiations.
He said that there are areas of the federal government that “are immensely interesting to foreign governments and their agents.”
Mr. Wernick called for federal transparency practices to be entrenched in law to prevent them being withdrawn or curtailed by a future government.
“You should put it in the law,” he said, “making it painful to repeal and painful to backslide.”
He suggested that the Information Commissioner be restyled the “transparency commissioner” with a mandate to recommend continuous improvements to access across all branches of the federal government including Parliament, the courts and the public service.
In his written submission to the committee, Mr. Wernick said the access-to-information regime should be “expanded to fully include … all taxpayer-funded political staff in ministers’ offices, including the prime minister’s office.”
Mr. Wernick told The Globe and Mail that “public servants and political staff … often interact with each other in the development and delivery of what government does. The onus should be on those who want to exclude political staff who work for ministers from [Access to Information and Privacy] to make the case why.”
He and editor Kirk LaPointe – who has made thousands of freedom-of-information requests during his journalistic career – warned MPs that ministers’ aides have been known to communicate by phone or apps that could fall outside the law’s scope.
Mr. LaPointe, vice-president, editorial, Glacier Media, said the law needed “some teeth” to ensure that “the important footprints of our history are not in the smartphones of political aides and public servants.”
Mr. Wernick, who is Jarislowsky Chair in public-sector management at the University of Ottawa, said Canada could introduce an American-style law to prevent this, to make “communicating off book” on apps such as WhatsApp against the law for public servants and political staff.
This could include “sanctions for communicating government business on unapproved software and devices,” he told MPs.
But Mr. Wernick cautioned against curtailing the free exchange of views and ideas in cabinet, saying in a submission to the committee that there is a link between “confidentiality and candour,” which also exists at private caucus meetings of MPs.
But he said the definition of “cabinet confidence and advice to ministers” should be made clearer to narrow the scope for blacking out parts of records requested under the access-to-information law.
Mr. Wernick also suggested that the time before the routine release of cabinet papers could be halved from 20 to 10 years.
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 firstname.lastname@example.org.