Federal info watchdog recommends sweeping change to Access to Information

Canada's Information Commissioner Suzanne Legault shuffles papers during a news conference upon the release of her report in Ottawa March 31, 2015. REUTERS/Chris Wattie

Canada’s information watchdog is recommending sweeping changes to federal access to information law, including bringing the Prime Minister’s Office and his cabinet under its scope.

In a report tabled Tuesday, Information Commissioner Suzanne Legault makes 85 recommendations to update the legislation that enshrines the public’s right to government information.

“In the 30-plus year history of the Office of the Information Commissioner of Canada, my predecessors and I have documented multiple challenges and deficiencies with the act,” Legault says in the report.

“The act is applied to encourage a culture of delay. The act is applied to deny disclosure. It acts as a shield against transparency. The interests of the government trump the interests of the public.”

She recommends eliminating all fees for access to information requests. Currently, while the application fee to make a request is only $5, additional fees can be charged for search time and reproducing records.

Her own investigations have found that some institutions use fees to deter requests, narrow them and to recover costs, the report says.

It cites one case where the Privy Council Office assessed a $4,250 fee to fulfill a request. Following an investigation by the commissioner’s office, that fee was reassessed at $119.80.

The commissioner also suggests stricter timelines and limitations be enshrined in the legislation.

The recommendation to extend the act’s reach is not limited to cabinet. Parliamentary secretaries, airport authorities and publicly funded entities like NAV Canada and Canada Health Infoway should also be subject, she says, along with the House of Commons, senate and the ethics and conflict of interest commissioners, the report recommends.

“Concerns that arose in 2013 about the expenses of individual senators have shown that Canadians want more, and are entitled to, transparency and accountability from Parliament with respect to how taxpayer dollars are spent,” it says.

In the brave new world of modern technology, the commissioner says the law should include a duty to document decision-making and preserve those records, as well as sanctions for failing to do so.

The commissioner makes several recommendations aimed at reining in exemptions used to withhold information, and says there should be a maximum $25,000 fine for obstructing requests or destroying or concealing records.

And there should be a parliamentary review of the act every five years, the commissioner says.

Experts on board with recommendations

Dean Beeby, an Ottawa-based journalist for CBC and freedom of information expert, says the report targets fundamental flaws in the current access to information regime.

“Users like myself have been frustrated for years that the OIC relies almost exclusively on moral suasion to police the legislation,” Beeby says.

“It’s like passing a Highway Act, but neglecting to hire traffic cops. Now, Legault is proposing she be given order-making power and that penalties be imposed on rule-breakers. That’s an important piece of reform.”

But he’s concerned that the commissioner also opens the door to outlawing “frivolous and vexatious” requests and while she proposes many more responsibilities for her office, she offers no suggestions on how the commission will pay for them.

As for the current government adopting the proposals, Beeby is skeptical.

Ottawa undertook a protracted court battle to keep records from ministers’ offices outside the act and won, he points out.

And government relies more and more on the loophole in the current act that excludes cabinet documents, he says.

The report is so comprehensive, it will be easy to ignore, he says. The commissioner may have been better to fight for a few key changes.

The report is “pie-in-the-sky,” Beeby says. “Full of noble aspirations but no sense of the reality of politics. I fear it will gather dust as have so many other ATIA reform reports.”

But access to government information is fundamental to democracy, says Legault, because it allows taxpayers to hold their government to account.

“A modern act will only succeed, however, if there is a concomitant change in institutional culture from secrecy to openness, from delay to timeliness,” she says in the report.