Canada: Reforming the Access to Information Act for better open government – Sabrina Wilkinson

28 07 2018

This August, the Government of Canada will kick off its fourth plan on open government. The introduction of this strategy will be a culmination of nearly a year of consultations as well the anniversary of Canada’s assumed seat on the Open Government Partnership (OGP) steering committee, “a global multilateral initiative [aimed at] securing solid commitments from governments to promote transparency” and other forms of better governance.

The country’s recognition for its efforts in this area does not stop there. In 2017, Canada was ranked second by the Open Data Barometer, a global survey of governments’ efforts to publish and use open data. The barometer covers 115 countries and jurisdictions.

The Government of Canada’s achievements in open government should be lauded. The recent Cambridge Analytica scandal highlights only too starkly the importance of transparency and privacy in a data-driven world. Government initiatives that champion these values are not only admirable for their aims but critical to the proper functioning of a democracy.

Despite these accomplishments, the Government of Canada’s open government initiatives are wanting in several key areas. Canada’s Access to Information Act, which governs the right to access information from the federal government with limited exceptions, has not been substantially updated since its passing in 1982, and woefully trails international standards. And indeed, this gap has been noticed by various comparative studies. In contrast to its ranking in the Open Data Barometer, for instance, Canada ranks 48th (amongst 112 countries) in the Centre for Law and Democracy’s Global Right to Information Rating, which focuses on the strength of countries’ right to information legal framework. Notably, the Open Data Barometer uses measurement standards based on six broad principles for how governments should publish data, rather than a targeted look at legislative standards.

And indeed, there is no shortage of examples where journalists, researchers and people living in Canada have had arduous experiences making requests from the government for information. This spring, Amir Attaran, a law professor at the University of Ottawa, called for the abolishment of the office of the information commissioner after waiting for close to a decade for the resolution of his complaint against the withholding of information from a request. Canada’s public broadcaster, the CBC, has reported on an instance where a requester was informed by a government department that his application for information on a particular Royal Canadian Mounted Police investigation would take at least 80 years to complete. An anomaly to be sure, but long wait times for information requested through the Access to Information Act are a regular occurrence with former information commissioner Suzanne Legault commenting on the “culture of delay” within the public service.

Accordingly, it would be instructive for the Government of Canada to learn from some of its international counterparts that scored at the high end of the Centre for Law and Democracy’s study, such as Mexico (ranked 1st) and Serbia (ranked 2nd). Unlike Canada, both countries have enshrined access to information in their constitution. (In Canada, the right to information is only legally recognized as a ‘limited and derivative right’) What’s more, Canada too falls short in only providing the right to access information to citizens, permanent residents and legal entities in Canada, rather than to all natural and legal persons. This lack is another sharp contrast to the laws in Mexico and Serbia, which ensure that anyone, regardless of immigration status, hold this right. Illustratively, article 15 of Mexico’s General Act of Transparency and Access to Public Information states, “everyone has the right of access to information without discrimination on any grounds”.

Moreover, the extent to which Canada’s Access to Information Act can be trumped by other laws with independent provisions also weakens its powers, again unlike Mexico and Serbia’s respective pieces of legislation. This means that someone requesting information from the Government of Canada could be denied because another law is used to supersede their right to access information. And finally, Canada’s act does not have any system for addressing the issue of system failures by public authorities in information disclosure, such as the scenario described by the former information commissioner earlier in this blog. While Mexico has only a partial legislative solution here, article 22 of Serbia’s Law on Free Access to Information of Public Importance outlines a coherent complaint and penalty regime for such situations.

Many of the key proposals for a reform to Canada’s legislation can be found in responses to the Government of Canada’s proposed Access to Information Act reform, Bill C-58, which was tabled in June 2017. The Centre for Law and Democracy and a coalition of civil society organizations and engaged citizens, for instance, answered with a call for an expansion of the Act’s scope to encompass the Prime Minister’s Office and those of department ministers, the introduction of a formal duty on public authorities to preserve records of decision-making and the implementation of a system that would limit the discretion of public authorities to extend time limits for responding to information requests, alongside other suggestions. While changes have been made to the Bill since this time, the comments put forth by the Centre for Law and Democracy and its partners have not been meaningfully incorporated. The Senate has completed its second reading of the Bill.

Given the progression of Bill C-58, it seems unlikely that Canada’s Access to Information Act will measure up to world-leaders in this area anytime soon. Nonetheless, researchers, students and advocates of robust open government in Canada should continue calling for changes to the act that bring it closer to its international peers. In the information age, transparency in government is fundamental to a strong democracy—and worth fighting for.

Sabrina Wilkinson, PhD researcher at Goldsmiths, University of London, researches the politics of internet regulation in Canada. 

This post originally appeared on the LSE Media Policy Project Blog and is reproduced with permission and thanks.


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