Easier Access Needed to Federal Information Law

By Aaron Freeman

Despite polls that consistently show Canadians to be cynical about the political process, the Liberals have done little to make the Canadian government more accountable. This allergy to government transparency has surfaced in their recent efforts to replace Canada's Information Commissioner.

The Commissioner oversees the Access to Information Act, the law that gives all Canadians access to many government documents. Transparency is a key vaccine against government waste and conflict of interest, and access to these documents is crucial to keeping governments honest and effective.

The replacement for outgoing Commissioner John Grace was initially rumoured to be John Tait, a career bureaucrat who was part of a small group of senior officials looking into ways of changing the Access to Information act to prevent what they considered "frivolous and vexatious" information requests.

Their recommendations included raising fees and toughening the barriers to launching requests. The government then backed another bureaucrat, Mary Gusella, for the post. Gusella probably first developed a distaste for information requests during her tenure at the Atlantic Canada Opportunities Agency. Journalists using the Access to Information Act showed that she was living in Ottawa while serving with the Moncton-based Agency, charging taxpayers for her numerous trips to and from Moncton. Reporters also succeeded in having other information on the agency released against Gusella's protests. Later, journalists used the act to reveal how much she spent on office renovations when she moved to the Department of Multiculturalism and Citizenship.

Strong opposition to Tait and Gusella has prompted the government to look for other candidates, but these nominees reflect a troubling view among many officials that Access to Information is abused by those who file requests.

The notion that legions of conspiracy theorists are wasting taxpayer dollars by filing hundreds of silly and useless information requests should not be accepted without heavy scrutiny, and those making this assertion have yet to provide any empirical evidence that it is true. It is particularly ridiculous when one considers how truly outdated and restrictive Canada's Access to Information law is.

Responses to requests under the Access to Information Act are met within the mandated 30 days only 57 percent of the time, and the fee scale for such requests is sometimes well in excess of the administrative costs of gathering the information. The government can withhold information on a broad range of grounds, including documents that deal with federal-provincial relations, foreign relations or economic relations, as well as information that affects "the safety of individuals." It can also shield any Cabinet confidences -- including memoranda, minutes and discussion papers -- for 20 years. Parliament itself -- including MPs and Senators -- are exempt from the Act.

The result is that applicants are too often denied information, and government waste and conflicts of interest are not easily uncovered by researchers or journalists. The state of Canada's legislation is such that the government's own report on the Access to Information Act in 1994 concluded that while Americans view access to information as a key component of democracy, "that spirit and intent is missing in this country."

Bureaucrats are quick to mention to applicants who are experiencing difficulty having their requests responded to that there exists a right to complain to the Information Commissioner. However, the Commissioner's ruling's are not binding and the process can be lengthy. This has created a "chill effect" among many departmental staff in responding properly to requests, since there are no significant penalties for not doing so. Appointing a commissioner who is predisposed to the notion that barriers are needed to reduce "frivolous and vexatious" requests would make this already tame role practically meaningless.

An overhaul of Canada's access to information regime is long overdue. The first step must be to appoint an Information Commissioner who is independent from the bureaucracy. In addition, major changes to the law should be made. Specifically:

• The wide discretion for refusing requests for information should be restricted. Access -- not exclusion -- should be the default. The law should also cover a wider range of government agencies, such as Crown Corporations, which are currently not covered.
• Information should be more accessible. For information to be useful to members of the public, it must be accessible in a format that they can use. Consultation with potential users should help define how to make it available. For some information, electronic access will be the only effective manner. Information should also be more readily available through the Internet.
• The cost of accessing the information should be minimized. In most cases, taxpayers already pay to have the information gathered and published, so the maximum price should be the marginal cost of the additional copy of the information.
• The Commissioner's decisions on whether to grant access to documents should be binding on government departments. Under the Ontario, Alberta and BC access laws for example, Commissioners' orders are final and binding. (In fact, last week the Ontario Commissioner ruled that the provincial government could not charge the exhorbitant fee of $20,000 for government information on compliance with pollution laws by Ontario companies.) Federal public officials should also face this effective incentive to respond to information requests promptly and properly.

Rather than making access to government information even more restrictive, the federal government should appoint an Information Commissioner and amend access laws with a view to restoring transparency, accountability and trust in Canada's public institutions.

Aaron Freeman is a Board memberof Democracy Watch, an Ottawa based citizen advocacy group that focuses on government and corporate accountability.