2004 freedominfo.org Global Survey Results

2004 freedominfo.org Global Survey Results - Canada
Text from the freedominfo.org Global Survey: Freedom of Information and Access to Government Records Around the World, by David Banisar (updated 12 May 2004)

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.

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.

The Cabinet confidences exemption was described as the "Mack Truck" exemption because of the wide discretion it gives. This has been recently limited by the courts. The Supreme Court ruled in July 2002 that the decisions of the government to withhold documents under this exemption can be reviewed by the courts and other bodies including the Information Commissioner to ensure they were procedurally correct. (2) 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. (3) 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.

The Supreme Court also ruled in March 2003 that employment histories of RCMP officers can be released under the ATIA. (4) The Court found that Parliament has provided less privacy protections for those who work for the government relating to their functions or positions. The Court also rejected the claim by the Commissioner of the RCMP that disclosing the information would not promote accountability, noting that the act was open to any person regardless of the motivation for the request.

The Office of the Information Commissioner of Canada oversees the Act's implementation. (5) 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 Office handed 956 complaints and 3,157 inquiries and completed 1,004 investigations in 2002-2003. The office issues report cards on agencies that received the most complaints. This is aimed at remedying problems of systemic noncompliance 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 also notes that the overall complaints for delays dropped from 28 percent to 16 percent indicating that government departments were becoming more responsive.

The ATIA was amended by the Terrorism Act in November 2001. (6) 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. However, the Information Commissioner testified in December 2001 that the review is "so limited as to be fruitless for any objector and demeaning to the reviewing judge." Thus far, no certificates have been issued. The Privy Council Office also ordered that all requests relating to anti-terrorism must be reviewed by the PCO but that policy has ended. However, Transport Canada is refusing to release information on passenger and baggage screening, which was criticized by the Senate Committee on National Security and Defence in January 2003.

The Government of Canada established an Access to Information Review Task Force in August 2000. (8) The task force was made up mostly of government insiders. It released its final report in June 2002, stating that the structure of the Access to Information Act is sufficient but also recommended over 100 changes, including limiting the subpoena power of the Information Commissioner. (9) The Information Commissioner expressed "disappointment" with the report stating, "the recommendations for legislative change in the report would significantly expand the zone of secrecy in Canada". (10) Thus far, none of the recommendations have been adopted.

Over 21,000 requests were made under the ATIA in 2001-2002, up slightly from the previous year and the highest since the law was enacted. (11) Of these requests, 32 percent were released in full, 40 percent were released in part, three percent were exempted or excluded from release and over 21 percent were not processed for reasons of insufficient information, abandonment or nonexistence of records. The Immigration Service received the largest number of requests - 30 percent. 43 percent of requests were by businesses, the public made 33 percent and 12 percent by the media.

The Information Commissioner has been critical of the government's efforts to restrict access. He began his 1999-2000 annual report with "Mayday - Mayday." In his 2000-2001 report, he issued detailed recommendations on improving the Act, stating that while the Act could still be considered a success, that there were persistent problems, such as delays, excessive secrecy, improper record-handling practices, fees as barriers to access, inadequate searches and political interference. There is also concern about the growing number of quasi-governmental organizations that perform public functions but operate outside the law. In his 2002-2003 report, he notes that the government's poor information management threatens access but recognizes that the government is starting to recognize the need to change their practices. (12) Following this, the Treasury Board announced a new policy on Management of Government Information Holdings in May 2003, which is hoped will substantially improve record keeping, especially of electronic records. (13)

Individuals can access and correct their records held by federal agencies under the Privacy Act, a companion law to the ATIA. (14) There were over 36,000 requests for records in 2001-2002. Under the Personal Information Protection and Electronic Documents Act (PIPEDA), individuals can access and correct their records held by federally regulated businesses such as telecommunications companies and banks. (15) In 2004, its coverage will expand to cover all businesses except in provinces which have adopted similar laws. The Acts are overseen by the Privacy Commissioner who has similar powers to the Information Commissioner. (16)

The Security of Information Act criminalizes the unauthorized release, possession or reception of secret information. (17) 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 called the Official Secrets Act and was amended and renamed by the 2001 Anti-terrorism Act.

All the Canadian provinces have a freedom of information law and most have a commissioner or ombudsman who provides enforcement and oversight. (18)

Notes

1. Access to Information Act, C. A-1, http://laws.justice.gc.ca/en/a-1/

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

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

4. Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police) , 2003-03-06, Supreme Ct Canada. http://www.canlii.org/ca/cas/scc/2003/2003scc8.html

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

6. Bill C-36, the Anti-Terrorism Act. http://www.parl.gc.ca/PDF/37/1/parlbus/chambus/house/bills/government/C-36_4.pdf

7. http://infocom.gc.ca/speeches/speechview-e.asp?intspeechId=65

8. Homepage: http://www.atirtf-geai.gc.ca/home-e.html

9. Access to Information: Making it Work for Canadians: Report of the Access to Information Review Task Force (2002). http://www.atirtf-geai.gc.ca/report2002-e.html

10. Information Commissioner responds to the release of the report of the Access to Information Review Task Force, June 18, 2002. http://www.infocom.gc.ca/pressreleases/preleaseview-e.asp?intPressReleaseId=7

11. Treasury Board of Canada, InfoSource Bulletin No 25, Statistical Tables 2001-2002 Access to Information, August 2002. http://dsp-psd.communication.gc.ca/Collection/BT51-3-10-2-2001E_AUG.pdf

12. Annual Report of the Information Commissioner 2002-2003.

13. Policy on the Management of Government Information, May 1, 2003. http://www.tbs-sct.gc.ca/pubs_pol/ciopubs/TB_GIH/mgih-grdg_e.asp

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

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

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

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

18. See Alasdair Roberts, Limited Access: Assessing the Health of Canada's Freedom of Information Laws, April 1998. http://www.cna-acj.ca/client/cna/cna.nsf/object/LimitedAccess/$file/limitedaccess.pdf.