Caroline Maynard is the Information Commissioner of Canada.
In Canada, freedom of information laws exist to empower citizens and to promote an open and democratic society. By enabling Canadians to submit requests for records held by government institutions, these laws facilitate an open discussion of governmental operations, and help to promote transparency and accountability.
The Access to Information Act – the law guaranteeing this quasi-constitutional right of access at the federal level – turned 40 this past July. But middle age is proving to be unkind.
As we observe the International Day for Universal Access to Information this Thursday, some frank talk is in order. During my five-and-a-half years as Information Commissioner of Canada, I have investigated thousands of complaints regarding access to information requests made to federal institutions, and my experience as an independent parliamentary watchdog within this system has led me to some very stark conclusions. In particular, I have found that both the Act itself, and the information management practices upon which it depends, have proven to be entirely inadequate and ill-suited to meeting the expectations of Canadians in the 21st century. What’s more, over time, a culture of complacency has begun to take root in many of our federal institutions, which treat access to information requests as nuisances, disregard legal obligations, and tolerate undue delays.
To me, these are clear signs of a lack of commitment to transparency and a failure of leadership.
The results of this complacency are well-documented in my annual reports, in special reports to parliament on my systemic investigations, and in the multitude of anecdotes I have heard from users of the system. Gradually, delays have lengthened and performance in the area of access to information has declined. Some federal institutions now violate the access to information law on a daily basis, as requesters wait months or even years for records that should have been in their possession much sooner. In other cases, institutions simply deny requesters the access to records to which they are rightfully entitled.
Worse, in addition to having failed to modernize the practices that underpin the administration of a law introduced during the era of filing cabinets and typewriters, successive governments have failed to introduce amendments to the act itself that would have ensured that it remained relevant and effective. The COVID-19 pandemic played a big part in exposing the deficiencies across the system, to the point that our elected representatives finally felt compelled to examine these issues more closely.
The parliamentary study into the access to information system, initiated by the House of Commons’ Standing Committee on Access to Information, Privacy and Ethics (ETHI) in May, 2022, provided me with the platform to stress the urgent need for improvements, including essential amendments to the Act. I am not alone in this view. Stakeholders across the board, including access to information and privacy (ATIP) practitioners, have asked for additional resources, modernized tools and further legislative changes. While I support many of the recommendations in the ETHI committee’s June report, early indications suggest that the government does not intend to act on them.
I refuse to believe that the government’s failure to uphold its own law is somehow acceptable to Canadians. Yet I see little evidence that things will change any time soon. The government has already signalled that no amendments to the Access to Information Act are on the horizon, and its efforts to fix the system have been lethargic at best. With the government now engaged in a cost-cutting exercise, senior leaders within our federal institutions must remember that access to information is both a quasi-constitutional right and a legal obligation, and must be treated as such. This means providing the necessary resources to ATIP offices, and not subjecting them to reduced budgets.
In my capacity as information commissioner, I have pledged to use all the tools at my disposal, including issuing more orders and seeking recourse through the courts when institutions fail to uphold Canadians’ right to access. Unfortunately, that will not be enough to fix a broken system.
In an era of declining confidence in government institutions, the erosion of access to information has a profound impact on the health of our democracy. It is high time that our leaders make the changes that will allow the access to information system to overcome its mid-life crisis and meet the needs of Canadians in the 21st century.