The Trudeau government's proposed changes to the Access to Information Act could hamper efforts to settle Indigenous land claims, the federal information watchdog says.
Legislation that would give government agencies more leeway to refuse to process access requests would make it tougher for Indigenous groups to obtain the historical records they require, information commissioner Suzanne Legault told a House of Commons committee Wednesday.
Legault is critical of provisions that would allow an agency to reject a request unless the applicant stated the type of record being sought, the subject matter and the time-frame in which the documents were created – criteria she considers unreasonably specific.
For instance, a requester might not know the date a property title they seek was drafted – but that missing information could disqualify the request.
Legault said under the new scheme it "would be a lot more difficult for First Nations to access the information that they need" to establish land claims or document past events at the centre of disputes.
New Democrat MP Nathan Cullen said her response "should weigh on all of us as we consider amendments to this bill."
The access law allows applicants who pay $5 to ask for government documents ranging from expense reports and internal audits to briefing papers and archival papers, but it has been criticized as clumsy and antiquated.
The Liberal government says the bill, introduced last June, represents the first real modernization of the law since it took effect in 1983.
Transparency advocates have told the MPs on the information, privacy and ethics committee that the new powers to refuse requests would create barriers for people seeking federal files.
Legault says she has already received at least one complaint about an agency applying the new criteria, even though the bill is still before committee.
The requester asked National Defence for correspondence between two named individuals within a 10-week period. Defence took the position that since the request did not specify a subject matter, it would not process the application.
Legault maintains the request was not difficult to understand or to process, nor would it have unreasonably interfered with the department's operations. Following the requester's complaint and the information commissioner's intervention, Defence agreed to process the request.
Legault told the MPs an access request from the Globe and Mail newspaper that unearthed key information relating to the Liberal sponsorship scandal of the Jean Chretien era could have been refused if the new criteria were in place, since the request related to several years of budgetary records.
She said the proposed provisions were "a regression for Access to Information rights generally."
Liberal MP Frank Baylis took issue with her assessment, calling the criteria "exceedingly reasonable."
Overall, however, committee members have signalled a willingness to entertain changes to the bill following widespread criticism that it falls short of Liberal transparency promises.
In a report presented to Parliament in September, Legault said the bill would take people's right to know backwards rather than forward.
The government has not fulfilled its promise to extend the law to the offices of the prime minister, cabinet members, senators, MPs and administrative institutions that support Parliament and the courts, she said.
Instead, these offices and institutions would be required to regularly release certain types of records, such as hospitality and travel expenses and contract information.
Such a scheme allows government to decide what information Canadians can obtain, rather than letting requesters decide for themselves, Legault said. It also denies the commissioner any oversight of the process.
In addition, the bill backpedals on a promise to give the information commissioner genuine power to make orders about the release of records, she said.