On Monday October 23rd, Cara Zwibel, Acting General Counsel of the Canadian Civil Liberties Association appeared before the Standing Committee on Access to Information, Privacy and Ethics in relation to the study of Bill C-58.
A strong access regime is vital to a vibrant democracy. Without information about how our government functions, we simply cannot participate in our democracy in a meaningful way nor can we make informed choices at the ballot box. The transparency that can be facilitated by way of a strong access scheme is fundamental in ensuring those in government remain accountable. The Supreme Court of Canada has also recognized that access to information is a right that derives from the Charter’s protection of freedom of expression and arises where it is “a necessary precondition of meaningful expression on the functioning of government.”
CCLA believes the Access to Information Act has been in need of a major overhaul for many years, and we are deeply disappointed with Bill C-58. It is not the comprehensive reform that is needed and to say that more changes will be made down the road is not enough. The issue has been studied for many years and the government has the benefit of recommendations from the Information Commissioner and the ETHI Committee. Now is the time for action.
The proposed amendments in C-58 do not address a number of long-standing concerns related to the Act. The long list of exceptions and exemptions under the Act have not been narrowed or addressed in anyway. There is no right of access in relation to Ministers’ offices (despite promises made by government prior to the election), and the Bill does not create a duty on government offices to appropriately document decisions – a tool that would help to ensure that the kind of information Canadians may want and are entitled to, will actually exist.
The changes made in the Act may actually impose new barriers to individuals seeking information about their government. There are a few ways in which it would be harder for individuals seeking access if the changes proposed in Bill C-58 are adopted:
1. New barriers on request for information
- Fees are barriers to access. Instead of eliminating most fees as promised, the Bill gets rid of some of the existing limitations on fees and allows the fee-setting function to be done via regulation.
- If fees are going to be retained, they should at least be clearly limited in the Act itself (eg. the Act could specify what categories of items would be subject to fees, or which categories an institution could not charge for).
- Proposed s. 6 delineates the items that must be included in a request for access and s. 6.1 grants heads of government institutions the right to refuse requests that are non-compliant.
- Since the Bill also eliminates the obligation on institutions to publish Info Source (describing the types of records the institution creates), even less information will be available to help a requester figure out how to appropriately frame a request.
- There appears to be no clear benefit to be gained from these amendments, but very real risks to the right of access.
- CCLA urges the Committee to remove the new requirements set out in s. 6.
2. To whom does information belong?
- There are new grounds for refusing a request articulated in s. 6.1 including where the request is so large or complex that it will unreasonably interfere with the operations of the government institutions
- The fact that these requests may require a lot of work does not mean there is no right of access and this reinforces the notion that the information “belongs” to government rather than the public.
- An institution can also refuse a request where the institution’s head finds the request to be frivolous, vexatious or made in bad faith. If this is considered necessary, the Act should clearly articulate criteria to be used by institutional heads in determining when a request falls into this category.
- Providing access to the public should be seen as a core function of government institutions. The new rights of refusal send the wrong message to requesters and access officers.
- CCLA proposes that the new rights of refusal be eliminated from the Bill. If maintained, the ground of refusal for frivolous, vexatious or bad faith requests should be clarified
3. The absence of a public interest override
- In CCLA’s view, a public interest override is an important safeguard that should be included in the Act. The public interest override would allow for information considered exempt from disclosure to be released where it is in the public interest.
- Beyond the technical and legal interpretation of all the provisions, the fundamental question at issue in an access request is, does the public have a right to know? A public interest override is a mechanism to ensure that this question gets answered correctly.
- CCLA encourages the Committee to look at other provincial models and consider an amendment to the Bill to insert a public interest override.
4. The order making power given to the Information Commissioner
- While CCLA believes strongly that the Commissioner needs this power, the scheme in the Bill grants it and, at the same time, undercuts it.
- Where judicial review of the Commissioner’s order is sought, s. 44.1 specifies that the review will be de novo – thus no deference will be given to the Commissioner’s decision and the government department can rely on new reasons for refusing access.
- This approach places a great burden on our courts, ignores the significant expertise that resides in the Commissioner’s office, and does not provide government departments with any incentive to put their best arguments or information forward initially.
- This allows government institutions to draw out the process and thus may frustrate a requester’s intent by ultimately producing stale information.
- The commissioner needs robust order making powers and review should be of the Commissioner’s order. We recommend amending this aspect of the Bill.
5. The new proactive publication requirements
- Proactive disclosure has the potential to enhance openness and transparency and improve the efficiency of our access system, but it is not a substitute for a strong access scheme.
- The proactive publication regime established by Bill C-58 lets the government decide what Canadians can see and applies primarily to financial information.
- Even the information that is set out for proactive publication has some very substantial exclusions and is subject to no oversight.
- The Information Commissioner plays no role in ensuring that the required items are published and there appear to be no consequences for an entity that simply ignores the legislation.
- The Prime Minister’s and Ministers’ offices should be subject to the access provisions of the Act.
This is not the open and transparent government that Canadians want and deserve, and it is not the overhaul of the Access Act that is so clearly needed.
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