Canada

freedom of information: update

There have been some other significant developments since 2006:

2008: Government institutions from local police forces to federal departments continue to stymie access to public records through excessive delays, prohibitive fees and the refusal to provide records in electronic form, according to an audit of freedom-of-information regimes across Canada in 2008.

In its fourth annual audit, the Canadian Newspaper Association (CNA) monitored the compliance of government institutions at the municipal, provincial and federal levels with FOI laws, which enable members of the public to view or obtain government records upon request, subject to certain exemptions. The audit found “disturbing inconsistencies” in how governments and public agencies apply the law. While some institutions provided information quickly and at no cost, others imposed high costs or long delays. The audit team sent 219 requests to 22 municipalities and municipal police forces, the 10 provinces and Yukon, as well as 11 federal departments and Crown corporations.

May 2008:The Canadian Association of Journalists awarded Prime Minister Harper its “Code of Silence Award” for 2007. “Harper’s white-knuckled death grip on public information makes this the easiest decision the cabal of judges has ever rendered,” said CAJ President Mary Agnes Welch. “He’s gone beyond merely gagging cabinet ministers and professional civil servants, stalling access to information requests and blackballing reporters who ask tough questions. He has built a pervasive government apparatus whose sole purpose is to strangle the flow of public information.”[1]

September 2008: During Right to Know Week, a 393-page report sponsored by several Canadian newspaper associations was released: Fallen Behind: Canada’s Access to Information Act in the World Context. The basis of this report was a new World FOI Chart, an Excel spreadsheet posted at the same website, a comparative table of all the world’s FOI statutes and many NGO commentaries.

The report confirmed what most commentators had long stated – that Canada’s 1982 ATIA is woefully outdated when compared to the FOI statutes of most other nations. (This point was vigorously denied by the Justice Minister in 2009.) The ATIA also fails to conform to most key FOI recommendations from at least ten global political organizations, such as the Commonwealth Secretariat, the Council of Europe, the Organization for Security and Co-operation in Europe (OSCE), and the United Nations Development Agency (UNDP).

September 2008: Canada’s Information Commissioner upheld a newspaper industry complaint that government practices of tagging requests for information as “sensitive” create “unfair and unjustifiable delays in the processing of those requests,” and has urged government departments to stop holding up information.[2]

The finding marks the conclusion of an unprecedented three-year investigation into 21 government departments triggered by a complaint from the Canadian Newspaper Association in September, 2005, alleging that “secret rules and procedures (…) contravene the (Access to Information) Act, (and) result, more importantly, in unfair and unjustifiable delays in the processing of media requests for government information to which the public has a right in our democracy.”

October 2008: The federal government refused to release briefing books prepared for the minister tasked with making the government more accountable. Manitoba MP Steven Fletcher was sworn in as the minister of state for democratic reform in October 2008. The Winnipeg Free Press made a request for the briefing books prepared to help Fletcher learn his new portfolio. After a six-month delay, the newspaper was told its request would not be honoured, because it contained advice to cabinet. Briefing books are often released through access requests, albeit with small portions withheld, and this marks the first known occasion of one being denied completely.[3]

December 2008: The Supreme Court of Canada will consider a 10-year-old legal dispute over whether the public should have access to the private agenda books of the prime minister. In December 2008, the court granted leave to appeal to the federal information commissioner, who is seeking to release the daytimers of former Liberal prime minister Jean Chretien in response to an Access to Information Act applicant. The outcome could determine how much of the prime minister’s life should be shielded from public view.

The Federal Court ruled in 2008 that the disputed 2,000 pages of records are under the control of the Prime Minister’s Office, and therefore exempt from the ATIA. The government argues that documents held in ministerial offices do not fall under the same public scrutiny as those kept in government departments.[4]

February 2009: In a scathing 156-page special report, the Information Commissioner said “serious flaws” in the way Ottawa delays ATIA requests has plunged the system into a “crisis” situation. “The poor performance shown by institutions is symptomatic of a major information management crisis throughout government,” he said. “Access to information has become hostage to this crisis and is about to become its victim.”

Robert Marleau was particularly critical of the Prime Minister’s directives that have created a “stranglehold in the centre on communications” and made Ottawa’s “tendency to withhold information” even worse than it was before. He added there are currently “no consequences” for those who ignore their obligations under the accesstoinformation law because it “has no teeth.” He appealed to the Prime Minister to follow U.S. President Barack Obama’s lead and send a clear message that open government is a priority.[5]

June 2009: Information Commissioner Robert Marleau abruptly resigned for “entirely personal and private” reasons, barely halfway into a seven-year term, raising doubts about the pace and direction of reforms to Canada’s access to information laws that he was spearheading. He was disappointed that his efforts to open up Ottawa found no advocates in the Conservative government. There is “no one minister, no one parliamentary secretary on the government side that is taking this on,” he said. “It takes political guts. It takes political vision.”

Mr. Marleau defended his work on streamlining the office’s ability to handle complaints from the public. As a result, he says the backlog of complaints has been reduced by 40 per cent and the commission’s budget has increased. As of March 2010, Suzanne Legault is still acting as interim commissioner until a new one is appointed.[6]

In a dramatic and unprecedented showdown in Ottawa, Privy Council officials ended months of stonewalling on June 26, 2009, and handed over documents requested by the federal information commissioner. The disclosure of files came only after Robert Marleau threatened to have his staff enter the Privy Council offices and seize the paperwork themselves.

At the heart of the dispute was Mr. Marleau’s investigation into public complaints that the Privy Council office was frustrating several ATIA requests. (The office supports the Prime Minister’s Office and cabinet.) In particular, he was looking at 150 cases that involve “administrative” issues – complaints that could include the PCO’s demand for photocopying costs and time extensions. To probe the complaints, his staff needed the files in question. But the Privy Council had rebuffed the commission’s requests for the documents, some dating back many months.[7]

February 2010: Interim Information Commissioner Suzanne Legault launched a special investigation of how an over-zealous political aide to a minister got bureaucrats to “unrelease” a document already on its way to Canadian Press via the ATI process. The report, which revealed inefficiencies in the Public Works department’s real-estate operations, was politically embarrassing. (Months later an edited version was released.)

as of March 2010: In a case now in Federal Court, the Canadian Security Intelligence Service is trying to keep secret the names of those who helped forerunner spy agencies keep an eye on T.C. Douglas, the left-wing Saskatchewan premier (1944-61) now revered as the father of medicare. CSIS claims that disclosing investigative methods within the 1,142-page file on Douglas – with some of the records 75 years old – might cause harm to current national security. If that claim is upheld, Canada will be revealed to be far behind the former Communist bloc Eastern Europe, where names of those who informed on their neighbours to the secret police are now public information.[8]

The Harper government has not lived up to its campaign promise to be transparent when it comes to access to information legislation, says the man who led the inquiry into the Liberal sponsorship scandal. The result is ATIA applications that are delayed for up to two years, said retired justice of the Superior Court of Quebec John Gomery, the keynote speaker at the national convention of the Institute of Public Administration of Canada being held in Fredericton. “The current government ran for election in 2006 on a platform promising integrity, accountability, and transparency,” he said. “On the transparency issue its promises have simply not been fulfilled. I do think the record of the current government is very bad.”[9]

 

NOTES

[1]Psst… Harper Wins CAJ secrecy award. May 25, 2008.

[2] Government Unfairly Slows Access to Information Commissioner Concludes.

[3] Accountability minister’s briefing books off limits, The Ottawa Citizen, 13 February, 2010

 

[4] Top court to rule on PM’s private agenda books, Calgary Herald, 18 December, 2009

[5] A law in name only, The Brandon Sun, 28 February, 2009

[6] Ottawa chided for lacking ‘guts’; Departing information czar bemoans lack of openness, Toronto Star, 29 June, 2009

[7] PCO blinks, gives documents to information watchdog, Toronto Star, 27 June, 2009

[8] Canadian democracy is oxygen-starved, the Montreal Gazette, 14 February, 2010

[9] Harper’s transparency promise unfulfilled, former judge says, Fredericton Daily Gleaner, 27 August, 2009

 


freedom of information: excerpt from Global History

Text from the freedominfo.org Global Survey: Freedom of Information and Access to Government Records Around the World, by David Banisar (updated July 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

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/

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

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

Annual Report 2004-2005.

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

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

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

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

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

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.

See Information Commissioner of Canada, Access to Information Act – Proposed Changes and Notes.

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.

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

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

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

H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General), 2006 SCC 13. 
http://scc-csc.lexum.com/scc-csc/scc-csc/en/8/1/document.do

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

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


freedom of information: further reading

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links

LEGAL DOCUMENTS

Access to Information Act, C. A-1

 

C-36, Anti-Terrorism Act

 

Treasury Board, Policy on the Management of Government Information, May 1, 2003

 

Privacy Act. R.S. 1985, c. P-21

 

Personal Information Protection and Electronic Documents Act

 

Security of Information Act, c. O-5

 

GOVERNMENT

Information Commissioner of Canada

 

Access to Information Review Task Force

 

Privacy Commissioner

 

Department of Justice Canada, Access to Information and Privacy

 

Freedom of Information and Protection of Privacy, Government of Alberta

 

The Nova Scotia Freedom of Information and Protection of Privacy Review Office

 

Office of the Information & Privacy Commissioner for British Columbia

 

Ombudsman Manitoba, Access and Privacy Division

 

Information and Privacy Commissioner / Ontario

 

Saskatchewan Justice, Freedom of Information and Protection of Privacy Branch

 

Office of the Saskatchewan Information and Privacy Commissioner

 

Yukon Ombudsman and Information and Privacy Commissioner

 

Government of Yukon - Access to Information and Protection of Privacy

 

ORGANIZATIONS

Canadian Association of Journalists

 

Canadian Newspaper Association

 

Open Government Campaign, Democracy Watch

 

Access Reports (subscription service)

 

British Columbia Freedom of Information and Privacy Association (FIPA)

 

B.C. Journalists Committee for Freedom of Information

 

Canadian Association of Professional Access and Privacy Administrators (CAPAPA)

 

Professor Alasdair Roberts, research on freedom of information law

 

Canadian Access and Privacy Association

 

Online Rights Canada

 

Canadian Journalists for Free Expression

 

Transparency International Canada

 

Canada Internet Policy and Public Interest Clinic

 

OTHER RESOURCES

Access to Information: Making it Work for Canadians (Review of Canada's ATI Act by Federal Government Task Force, 2002)

 


contributor

Stanley Tromp
Author of Fallen Behind and Independent FOI Researcher

 

 

Measuring Openness

Global Right to Information Rating
A country-by-country rating of laws by the Centre for Democracy and Law and Access Info.

Freedom House
The Freedom in the World report.

World Bank
Worldwide Governance Indicators

Transparency International, Corruption Perceptions Index
Measures perceptions of the degree of corruption.

Reporters Without Borders
The Press Freedom Index.