Access to Information   

So much for transparency
The long-awaited reform of the federal Access to Information law is shrouded in secrecy. 

By Alasdair Roberts

In August 2000, Justice Minister Anne McLellan announced the appointment of an internal task force to review Canada's aging Access to Information Act (ATIA). Canadians who hoped for a balanced and open review of the access law have been disappointed: this committee's modus operandi has shown little regard for the principle of transparency that the law is supposed to honour.

Like it or not, however, the Task Force will issue a report this fall, which may quickly lead to important statutory and regulatory changes. Non-governmental organizations, journalists and others who use the access law should be prepared to address four critical topics:

Scope of the law. Canada's access law does not apply to many organizations that perform important public functions. The laws of other nations often extend to government-owned corporations and quasi-governmental organizations, and in some cases require contractors to respect transparency rules. Canadian law is more limited, and does not affect public bodies like the Export Development Corporation, the Greater Toronto Airport Authority, or Canadian Blood Services.

The Task Force has already indicated that it is unlikely to recommend broadening the scope of the law. This would require a significant reversal of policy, since the central agencies represented on the Task Force have spent the last six years crafting laws that exempt new public bodies from access requirements. There is also a strong internal lobby against expansion of the Act. Nevertheless, the omission of important public bodies is one of the federal law's glaring deficiencies.

Issues about scope will arise in another way. A "paramountcy" rule in section 24 of the ATIA says that information collected under several other statutes is excluded from access requirements. The Information Commissioner has called for a thorough review of this list, whose number has grown from 33 statutes in 1982 to 51 today. A private member's bill that would have narrowed the paramountcy rule was strongly resisted by federal departments and defeated in May 2000.

Fees. The Task Force is certain to make proposals for increasing fees that may be charged for processing information requests. The government recently commissioned a $62,000 study that calculates the cost of administering the ATIA, and lays the groundwork for fee increases. Significant changes could be made quickly, without legislative amendments. For example, existing law would allow Cabinet to increase the current five-dollar application fee to twenty-five dollars.

Fee changes can have a dramatic effect and must be scrutinized carefully. Canadians are entitled to ask the Task Force for research that shows how fee changes will affect different kinds of information requesters. (The government has collected years of data on the operation of the law, and the Task Force has a $1.5 million budget.) Look out, as well, for a classic red herring: the attempt to justify increased fees on the principle of "cost recovery." The right to information is a fundamental right, like the right to vote: governments don't charge fees to recover the $200 million cost of general elections.

Exemptions. It's unclear what the Task Force will say about exemptions in the current law — those provisions that define the circumstances under which information can be withheld. Newer access laws generally define exemptions more narrowly than the federal law. On the other hand, an internal memo prepared for the Task Force suggests that federal bureaucrats have "a concern over their ability to give balanced and impartial advice to Ministers" without broader exemptions.

One exemption clearly needs an overhaul. The federal law allows the government to withhold information that it considers a "Cabinet confidence" and prohibits any independent review of the government's decision. No other access law takes this stance. Last September a British jurist, Lord Dervaird, criticized the unfairness of the federal approach, noting that it allowed the government to withhold documents "without any justification beyond the simple certification that they are some kind of state secret."

Other exemptions also deserve attention, such as broad provisions that protect information relating to discussions among bureaucrats, and some information relating to government contracts. The federal law also lacks a feature common to newer statutes: a "public interest override" that requires disclosure of information if the specific harm caused by disclosure is outweighed by a broader public benefit.

Enforcement. Journalists know from experience that statutory acknowledgment of a right to information isn't enough: there must also be effective mechanisms for enforcing that right. At the moment, the federal Information Commissioner has limited enforcement powers. A better law would allow the John Reid to collect performance statistics and negotiate with departments that show poor overall performance in handling ATIA requests. The law would also be improved by adding a duty on agencies to assist individuals who want to make requests for information. This provision, already included in other FOI laws, would help citizens to narrow their requests for information. This will be particularly important if fees for processing broad requests are increased substantially.

Individuals and organizations that use the access law have only a few months to develop positions on these four topics. Federal public servants have given themselves a six-year head start. Central agencies have been developing recommendations on reform of the law since 1995. The Department of Justice now says that it has the right, under the Access to Information Act, to withhold all of these internal studies. The Task Force has also failed to disclose its research agenda and summaries of fact-gathering trips to Ireland, the United Kingdom, the United States, Australia and Sweden. In short, this review itself demonstrates how easily the habit of secrecy can overcome the principle of transparency. 

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Alasdair Roberts is an associate professor in the School of Policy Studies at Queen's University, and a fellow of the Open Society Institute, New York. His Web address is http://www.aroberts.ca.