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2 FEBRUARY 2006
Justice Gomery says government "overemphasize[s]" secrecy, Access to Information Act needs reform

Justice John Gomery, Superior Court of Quebec judge and Commissioner of the Commission of Inquiry into the Sponsorship Program and Advertising Activities, cited the failings of Canadian government agencies in complying with the Access to Information Act. Gomery argued that the government has "overemphasized" arguments in favor of secrecy andat times failes to "respect the spirit and intent of the existing legislation." The Commissioner also endorsed the recommendations of federal Information Commissioner John Reid for reform of the Act, stating that the Act "should state explicitly that records must be disclosed whenever the public interest in disclosure clearly outweighs the need for secrecy."
SOURCE: Bruce Campion-Smith, "Secrecy culture rebuked in report, says information hidden by officials, access laws need to be toughened," Toronto Star, February 2, 2006.

The 1983 Access to Information Act(1) provides Canadian citizens and other permanent residents and corporations in Canada the right to apply for and obtain copies of records held by government institutions. "Records" include letters, memos, reports, photographs, films, microforms, plans, drawings, diagrams, maps, sound and video recordings, and machine-readable or computer files. The institution must reply in 15 days. The courts have ruled that the Act is "quasi-constitutional."

Records can be withheld for numerous reasons: they were obtained in confidence from a foreign government, international organization, provincial or municipal or regional government; would injure federal-provincial or international affairs or national defense; relate to legal investigations, trade secrets, financial, commercial, scientific or technical information belonging to the government or materially injurious to the financial interests of Canada; include personal information defined by the Privacy Act; contain trade secrets and other confidential information of third parties; or relate to operations of the government that are less than 20 years old. Documents designated as Cabinet confidences are excluded from the Act and are presumed secret for 20 years.

Appeals of withholding are made to The Office of the Information Commissioner of Canada.(2) The Commissioner receives complaints and can investigate and issue recommendations but does not have the power to issue binding orders. It can ask for judicial review if its recommendation is not followed. The Canadian Federal Court has ruled that government has an obligation to answer all access requests regardless of the perceived motives of those making the requests. Similarly, the Commissioner must investigate all complaints even if the government seeks to block him from doing so on the grounds that the complaints are made for an improper purpose.

The ATIA was amended by the Terrorism Act in November 2001.(3) The amendments allow the Attorney General to issue a certificate to bar an investigation by the Information Commissioner regarding information obtained in confidence from a "foreign entity" or for protection of national security if the Commissioner has ordered the release of information. Limited judicial review is provided for. The Information Commissioner described the review as "so limited as to be fruitless for any objector and demeaning to the reviewing judge."(4) Thus far, no certificates have been issued.

The Commissioner received 1,506 complaints and completed 1,140 investigations in 2004-2005.(5) The Commissioner has an extensive backlog and an average investigation takes over seven months. Repeated requests for a number of years for additional resources have been denied by the government. The Commissioner also brought four cases before the federal courts. Eight cases were brought by requestors.

The office also issues report cards on agencies that received the most complaints for delays. This is aimed at remedying problems of systemic non-compliance within some major departments. Most of the agencies that have had negative report cards have substantially improved their procedures in the following years. The report notes that the overall complaints for delays dropped over half from nearly 50 percent in 1998 to 21 percent in the most recent report indicating that government departments were becoming more responsive. However, the number of extensions requested by institutions has more than quadrupled between 1999 and 2004.(6) The Commissioner reviewed practices at 42 agencies on extensions and found significant problems in between 40 and 80 percent of all extension requests. In 2004, the Commissioner expanded the report cards to look at the broader ATIA practices in the agency. It now looks at a number of issues including internal processes, resources devoted to ATIA, internal culture and information management.

The Courts have made numerous decisions on the Act, including 19 decisions in 2004-2005. Over the past several years, there has been a series of decisions by the courts on the powers of the Commissioner after government bodies filed 29 legal actions against the Commissioner to reduce his powers to investigate. The courts generally uphold the decisions of the Commissioner.(7) The Supreme Court ruled in July 2002 that the decisions of the government to withhold documents under this Cabinet papers exemption can be reviewed by the courts and other bodies including the Information Commissioner to ensure they were procedurally correct.(8) Following this decision, the Federal Court of Appeals ruled in February 2003 that discussion papers that contain background explanations, problem analysis and policy options can be released once a decision is made.(9) This was provided for in the ATIA but shortly after it went into effect, the government renamed the documents "memorandums to the Cabinet" and claimed that the exemption did not apply.

There has been a slow but steady increase in the number of requests made under the Act. In 2004-2005, it totaled over 25,000 requests.(10) A total of over 270,000 requests have been made under the ATIA since 1983. Typically the largest users are businesses and members of the general public. In 2004-2005, 47 percent of requests were by businesses, the public made 32 percent, 8 percent were from NGOs, and 11 percent were by the media.

There is wide recognition that the Act, which is largely unchanged since its adoption, is in need of drastic updating.(11) There has been an increased interest in the last few years to amend it. In 2004 a new Parliamentary Committee on Access to Information, Privacy and Ethics was formed which held hearings. The Liberal Government released a framework for revisions to the bill in 2005 and Information Commissioner John Reid released a draft bill.(12) In 2006, the Commission investigating the "sponsorship scandal" over the paying of $250 million to Quebec advertising firms linked to the Liberal Government to promote national unity also recommended many changes based on the Information Commissioner's recommendations.(13)

Most recently, the newly-elected Conservative government promised to include the changes recommended by the Commissioner into its first bill, "The Federal Accountability Act". However, the government announced that the ATIA reforms were going to be sent separately to a Parliamentary committee for review, reportedly due to pressure from the bureaucracy. The proposed changes were strongly criticized by the Information Commissioner as reducing access to information.(14) Prime Minister Harper also imposed new gag rules on officials speaking to the media or releasing information without permission.(15)

Individuals can access and correct their records held by federal agencies under the Privacy Act, a companion law to the ATIA.(16) There were over 36,000 requests for records in 2004-2005. A total of over 925,000 requests have been made under the Privacy Act since 1983.(17) Under the Personal Information Protection and Electronic Documents Act (PIPEDA), individuals can access and correct their records held by businesses except in provinces which have adopted similar laws.(18) The Acts are overseen by the Privacy Commissioner(19) who has similar powers to the Information Commissioner. From time to time, including in 2005, it has been proposed that the offices of the Privacy and Information Commissioners should be combined. There have been concerns about the possible conflicts of the two roles and thus far, the suggestions have been rejected.(20) The Supreme Court, in a 2006 case on privacy and freedom of information, ruled that some information could not be released, noting that, "the Privacy Commissioner and the Information Commissioner are of little help because, with no power to make binding orders, they have no teeth."(21)

The Security of Information Act criminalizes the unauthorized release, possession or reception of secret information.(22) Employees of the various intelligence services are permanently bound to secrecy. There is a limited defense for disclosing information to reveal a criminal offence but the person must have first informed a Deputy Minister and the relevant commission or committee. The Act was previously named the Official Secrets Act and was renamed by the 2001 Anti-terrorism Act and slightly amended. The Act was used to raid the office and home of a reporter for the Ottawa Citizen in January 2004 following the publication of an article on the controversial deportation of Maher Arar. The decision to raid was criticized widely, including by then newly-elected Prime Minister Paul Martin. The government promised to review the Act but in January 2005, a Justice Canada spokesman said that the review was "up in the air." A legal challenge to the raid is pending in the courts.

All the Canadian provinces have a freedom of information law and most have a commissioner or ombudsman who provides enforcement and oversight.(23) They also have adopted privacy legislation and in many jurisdictions, the Privacy and Information Commissioners are combined in a single office.

2004 freedominfo.org Global Survey Results - Canada

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13 JULY 2005
CANADA: Senior Officials Feared Terrorist Attack on Subways
According to internal memos obtained by the Canadian Press under the Access to Information Act, senior officials feared a possible attack by Islamic extremists on Canadian mass-transit networks in the spring of 2004. Prime Minister Paul Martin was briefed twice about suspicious incidents on the Toronto subway. Toronto's transit commission sent an urgent message to its employees, warning them to watch for suspicious packages and people; however, the public was not notified of the threat.

["Prime Minister given two briefings on suspected threats to T.O. subway," The Brockville Recorder and Times (Ontario), July 13, 2005, at A2.]

18 DECEMBER 2004
CANADA: Officials Under Duress, Fast-Track Work Visas for Strippers Likely Forced Into Prostitution
Government memos and other documents obtained under the Access to Information Act revealed that Human Resources Development Canada (HRDC) had reacted to intimidation by organized crime and transnational traffickers to establish a special fast-track immigration program for foreign exotic dancers. Fearing retaliation against government officials, HRDC established a special exemption category to grant work permits to foreign strippers so that the department would not have to deal with bookers or club owners on a case-by-case basis. The majority of the exotic dancers are young women from Romania, many of whom are known to be trafficked by criminal syndicates and forced into prostitution at strip clubs in Canada.
[Robert Fife, "Thugs bullied HRDC: Stripper visas were created to protect federal staff from 'bad guys,'" National Post (Ottawa), Dec. 18, 2004, at A1.]

22 JANUARY 2004
CANADA: Law Invoked for Raid Unconstitutional

The Globe and Mail (Canada) report that security provisions invoked to probe an alleged leak to an Ottawa journalist are so sweeping they might be struck down as unconstitutional, experts say.

Use of the anti-leakage provisions of the Security of Information Act to conduct a search of Ottawa Citizen reporter Juliet O'Neill's home has raised serious questions about whether the law is consistent with the Charter of Rights and Freedoms.

Scott Anderson, the Citizen's editor-in-chief, argued this week that the searches contravened the guarantees of press freedom in the Charter of Rights. The Security of Information Act makes it a crime to improperly disclose or receive information that the government “is taking measures to safeguard.”

Wesley Wark, a University of Toronto history professor, said the definition is rather amorphous and therefore worrying. “What does ‘safeguard' mean exactly? That strikes me as a very broad blanket that you can throw over all manner of information,” Mr. Wark said.

UPDATE (28 JANUARY 2004)
CBC News Canada reports that as a result of the outcry over the search of Journalist Juliet O'Neill's home, the Canadian Parliament will review the law that can make journalism a criminal offence, said Justice Minister Irwin Cotler.

The government wants Parliament to review the law, Cotler said, "with a view to modernizing that legislation and clarifying it and addressing the issues of public security on the one hand and protecting the fundamental rights of Canadians on the other, including in particular freedom of the press."

3 NOVEMBER 2003
CANADA: Military Boards Must to Be More Forthcoming

CanadaEast.com reports that Andrew Marin, the ombudsman for the Canadian Forces, has come out in support of grieving families and their right to have easier access to military records when a loved one is killed in the line of duty.

Making military boards of inquiry less secretive will be a key recommendation in two of Andre Marin's upcoming reports.

"We should look at ways to make the system more open, more transparent, more accountable to family members," Marin said in an interview with The Canadian Press.

28 SEPTEMBER 2003
CANADA: Coffee and National Security

Canada.com reports that the military's counter-terrorism unit withheld details of its purchase of a coffee maker, silverware, and a thermostat, claiming the release of such information to the public could harm the country's security.

Officers with the Ottawa-based Joint Task Force 2 commando unit originally deemed the purchase of the items as secret and argued providing such information to CanWest News Service under the Access to Information law could be "injurious to the conduct of international affairs, the defense of Canada or the detection, prevention or suppression of subversive or hostile activities."

It took nine months and an investigation by Information Commissioner John Reid before the Department of National Defense agreed to release limited details of Joint Task Force 2's spending for 2002.

Besides the $340 secret coffee maker and $9,000 clandestine silverware, the unit spent $21,500 for cleaning supplies, $238 for rubber stamps, $756 for plaques, $3,334 for towels, $21,304 for paint and $2,570 for wooden poles. It also racked up more than $862,000 in American Express card charges.

20 SEPTEMBER 2003
CANADA: Public's Right to Know, Under Attack?

The public's right to access government information is often subverted, delayed and denied by politicians and their advisers who appear more concerned with protecting the government's political image than the public right to know, a year-long Toronto Star investigation has found.

Ontario's freedom of information act entitles citizens to a clear window into government operations. But the investigation by the Atkinson Fellowship in Public Policy has uncovered political interference in information requests the government fears will lead to bad press and embarrassing questions from the Opposition.

The province's information commissioner, the government-appointed watchdog on freedom of information (FOI) issues, says any political interference violates the purpose of the act.

"Freedom of information laws are designed to ensure transparency and openness in our governments," said Ann Cavoukian, in a written statement.

"Our freedom of information laws must be free of political interference if they are to remain effective."

All FOI requests from the media, members of Opposition parties and anyone else who might use the records to hold government accountable for its actions and decisions are diverted into the contentious issues process.

The contentious issues management system is controlled and directed by the Office of the Premier and Cabinet Office, which is notified by ministries of all contentious requests, and of the sensitive government issues contained in the records to be released.

18 AUGUST 2003
CANADA: Loophole Could Limit Access to Information
The Globe and Mail (Canada) reports of a gaping loophole in Canadian law that could be allowing federal cabinet ministers to enjoy lavish meals, luxurious travel and other perks without scrutiny. John Reid, Canada's information commissioner warned that Treasury Board regulations, which changed 18 months ago, could exempt ministers from disclosing travel and hospitality details can also lead to large swaths of government information being blocked from public view.

"What we're really talking about is the potential for one great big hell of a loophole in the (Access to Information) Act," Mr. Reid said. "The whole principle is that any document that is in a minister's office — it doesn't exist for the purpose of the Act."

Currently, people filing access requests to find out what a minister has spent on hospitality or travel are guaranteed only the total sum spent — not a breakdown with receipts, as was the practice before Treasury Board made the changes.

Worse, Mr. Reid said, under the changes, various departmental documents could also be kept in ministers' offices and out of the reach of Access to Information requests.

14 JULY 2003
CANADA: MP's Push to Open their Travel and Hospitality Expenses
The Hill Times (Canada) reports that the same MPs who forced Canada's former Privacy Commissioner George Radwanski to disclose his controversial travel and hospitality expense accounts to Parliament ­ thereby making him subject to the Access to Information Act through the "back door" ­ are now pushing to make their own spending habits more open to public scrutiny, lest they be accused of failing to live up to the same level of transparency.

Liberal MP John Bryden (Ancaster-Dundas-Flamborough-Aldershot, Ont.), a long-time advocate of increasing government accountability, is leading the charge which would allow the public to see exactly how MPs spend every penny of their operating budgets which for some can run up to over $400,000 yearly when travel costs are included.

"You can't have it both ways. If you are going to have transparency you have to have transparency," said Mr. Bryden.

1 MARCH 2003
CANADA: Toronto Info Official Claims She is Being Punished For Doing Her Job
The director of Toronto's corporate access and privacy office, Rita Reynolds says she is being pressured by senior staff to keep potentially embarrassing information hidden from public view, reports The Toronto Star.

"I feel like I'm being intimidated and punished for doing my job with integrity," says Reynolds, who has publicly disclosed documents containing a series of high-profile revelations about city business over the past year.

Reynolds says her authority to independently rule on public disclosure of city records is already being undermined. For the first time in her 12-year career as access and privacy director for Toronto, Reynolds says, she was ordered this week to submit a decision on the release of municipal contract documents to the city's legal department for approval.

Reynolds' office has traditionally operated at arm's length from the city bureaucracy, empowered to disclose records free of oversight from outside departments that could have an interest in keeping public information locked in municipal filing cabinets.

13 FEBRUARY 2003
CANADA: Courts Lift Lid off Secrecy
Canada.com reports that the Canadian Federal Court of Appeal has unanimously upheld an earlier judgment in favor of releasing background analytical information about actions taken by the cabinet.

By upholding the decision, the Court is making available to the public, records that show how major government decisions are made.

2 DECEMBER 2002
CANADA: Government Releases 1962 Security Agreement Text
The 1962 agreement on the Security of Information between the United States and Canada has been declassified and released in response to an Access to Information Act request to the Canadian Department of Foreign Affairs and International Trade.

The Agreement binds the two governments to handle all classified
information exchanged between the two according to rules outlined in the NATO Security of Information Policy, C-M(55)15(Final). NATO and the Canadian government refused to release the NATO policy.

The Department initially said that it was unaware of any agreement with the United States. However, the US Department of Defense acknowledged the existence of the agreement in response to a request under the US Freedom of Information Act. The Canadian government located and released the document following an investigation by the Office of the information Commissioner.

24 JUNE 2002
CANADA: Access to Information in Canada
A task force charged with reviewing Canada's Access to Information act recently released a report on its findings. The report recommends increased government secrecy and greater obstacles to public access to records. While it the Canadian Information Commissioner has announced his disappointment with the findings, "the Chretien Government plans to use the reports recommendations as basis for ramming through regressive amendments this fall to Canada's 1982 Access to Information Act."

Notes

1. Access to Information Act, C. A-1. http://www.infocom.gc.ca/acts/pdfs/accessact.pdf

2. Homepage of the Information Commissioner of Canada. http://www.infocom.gc.ca/

3. Bill C-36, the Anti-Terrorism Act. http://canada.justice.gc.ca/en/terrorism/

4. Remarks to Special Committee on Bill C-36, 6 December 2001.

5. Annual Report 2004-2005.

6. Alasdair Roberts, Research note: Extensions under the Access to Information Act, October 2004. http://www.aroberts.us

7. See Office of the Information Commissioner, Annual Reports, 2002-03, 2003-04, 2004-05 for details of the cases.

8. Babcock v. Canada (Attorney General), Supreme Court of Canada, 11 July 2002. http://www.canlii.org/ca/cas/scc/2002/2002scc57.html

9. Canada (Minister of Environment) v. Canada (Information Commissioner), 2003 FCA 68. 7 February 2003. http://www.canlii.org/ca/cas/fca/2003/2003fca68.html

10. Treasury Board of Canada, InfoSource Bulletin No 28, Privacy Act and Access to Information Act 2004-2005 Access to Information, December 2005.

11. See e.g., Alasdair Roberts, Two Challenges in Administration of the Access to Information Act, Commission of Inquiry into the Sponsorship Program and Advertising Activities, Restoring Accountability - Phase 2 Report. February 2006. http://www.gomery.ca/en/index.asp; Canadian Newspaper Association, In Pursuit of Meaningful Access to Information Reform: Proposals to Strengthen Canadian Democracy, 9 February 2004.

12. See Information Commissioner of Canada, Access to Information Act - Proposed Changes and Notes http://www.infocom.gc.ca/specialreports/2005reform-e.asp

13. Commission of Inquiry into the Sponsorship Program and Advertising Activities, Id.

14. Office of the Information Commissioner of Canada, Response to the Government's Action Plan for Reform of the Access to Information Act, April 2006. http://www.infocom.gc.ca/specialreports/2006special-e.asp

15. Harper restricts ministers' message, Globe and Mail, 17 March 2006.

16. Privacy Act. R.S. 1985, c. P-21 http://laws.justice.gc.ca/en/P-21/index.html

17. InfoSource Bulletin No 28, Id.

18. Personal Information Protection and Electronic Documents Act. http://www.privcom.gc.ca/legislation/02_06_01_e.asp

19. Homepage: http://www.privcom.gc.ca/index_e.asp

20. The Offices of the Information and Privacy Commissioners: The Merger and Related Issues Report of the Special Advisor to the Minister of Justice Gérard V. La Forest, 15 November 2005. http://www.justice.gc.ca/en/pl/laforest_e.pdf

21. H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General), 2006 SCC 13. http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2006scc013.wpd.html

22. Security of Information Act, c. O-5. http://laws.justice.gc.ca/en/O-5/

23. See Alasdair Roberts, Limited Access: Assessing the Health of Canada's Freedom of Information Laws, April 1998. http://qsilver.queensu.ca/~foi/foi.pdf.

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