Canada's broken access to information system

"There is a tendency in government to refuse information to its citizens under the guise of privacy which is disguised as the public interest." Those words would not be out of place in 2023, but they were spoken in 1969 by John Turner in a speech to the Canadian Bar Association's annual meeting. Turner, the Justice Minister at the time, emphasized how a citizen's right to know is fundamental to participatory democracy and bluntly suggested that the time had come for Canada to deal with the matter legislatively. The United States had recently passed its Freedom of Information Act. By 1970, Europe's Nordic countries had all implemented laws on freedom of information. 

Fast forward to 1976, and the CBA organized its annual gathering around the theme of ATI. Turner returned to deliver another keynote, joined by consumer advocate Ralph Nader. Momentum built toward passage of a resolution advocating for a statutory right for people to access government information. The CBA released a model bill, which the Progressive Conservatives endorsed in the 1979 election. Joe Clark's government introduced the Freedom of Information Act, the precursor to the Access to Information Act, which came into force in 1983. Most provinces have since enacted legislation to grant similar rights within their jurisdiction.

But old habits die hard. As much as our access to information systems are still deemed essential to government accountability, critics warn they are more broken than ever — at a time when trust in our democratic processes are at an all-time low.

An ongoing Globe and Mail investigation by reporters Tom Cardoso and Robyn Doolittle revealed that public bodies routinely break freedom of information laws. They found that the average time to process an access request at the federal level is 83 days. In Ontario, it's 182 days. 

Cardoso sat on a recent CBA panel moderated by Sean Holman, an associate professor in journalism at the University of Victoria, with Iris Fischer, a media lawyer and partner at Blakes.  According to Cardoso, up to 30% of requests are completed outside legislative timelines, "which means the government's breaking the law," he told the audience. By law, federal institutions have 30 days to respond to an access to information request.

The state of our access system is so bad that Canada's information commissioners recently signed a joint resolution urging federal, provincial and territorial governments to modernize the law and strengthen the public's right to information.

"Our acts are not to par, and the systems are not to par. Information management is not to par. Every one of us is calling on our governments to do something about it," the federal Information Commissioner Caroline Maynard was quoted as saying.

For her part, Fischer identified three main problems with our ATI systems. First, public bodies often interpret access concerns too restrictively, citing conflicts with personal privacy rights. At the federal level, Canada's Privacy Act, enacted at the same time as the Access to Information Act, restricts the right of access by prohibiting the disclosure of personal information to third parties. The Supreme Court held in 2003 that the Privacy Act and the Access to Information Act "have to be read jointly and that neither takes precedence over the other."

"A lot of the work I do is about balancing openness and access and privacy and ensuring it stays," said Fischer. "It's all about the balance between open courts and privacy rights."

The second issue is delays, even though they vary considerably from one institution to another. Part of the reason is a culture of secrecy that reflexively prefers to shield public bodies from rigorous scrutiny. There’s also a dearth of resources. Canada's access to information laws were conceived with paper documentation in mind. In today’s digital environment, retrieving vast troves of email and text messages takes time, particularly when information management systems leave a lot to be desired. For small municipalities short on staff resources, it can be an impossible task, said Cardoso.

Another pressing concern is the capability of our ATI systems to adapt to the increasing reliance of government institutions on artificial intelligence in areas such as immigration and law enforcement. There should be no expectation that the Artificial Intelligence and Data Act (AIDA), introduced by the federal government as part of Bill C-27, will address this issue. While AIDA seeks to regulate high-impact AI systems and imposes obligations on organizations to inform the public about how they are being used, it does not apply to federal institutions.

A third difficulty is the lack of sanctions or penalties under the Access to Information Act. As a result, there no meaningful pressure on departments to comply within legislated timelines. Under the federal regime, the role of Canada's Information Commissioner is akin to that of an ombudsperson and has no power to order the release of government information (It can apply to the Federal Court of Canada, which, following a review of the refusal to disclose requested information, can order it to be released).

According to Fischer, the inclination of Canadian public institutions toward secrecy isn't uncommon. "We all understand that public scrutiny isn't always comfortable," she said. However, the law's many exemptions create openings that those opposing disclosure can exploit. "It can take a very long time for something to wend its way through the system," she said. "And so, even if something ultimately is disclosed, by the time that it's disclosed it's often useless."

Fischer does not believe Canada's system of government and its emphasis on Cabinet secrecy is the root of the problem either. If the ATI system is to be fit for purpose, then it will take better legislation, much less tolerant of delays and with enforceable penalties. "If you fix the legal framework, that will go a ways to fixing the cultural framework."

Less certain is whether there is the political will to update our laws. The most recent jurisdiction to have modernized theirs is Newfoundland and Labrador, and only after an explosive scandal forced its political class to act.

The irony is that more people are filing ATI requests than ever, says Cardoso, and the inability of our public institutions to respond is only feeding the public's distrust. "They don't trust the government and they want to see the doctrine," he said. "They want to see it for themselves. They don't want to hear someone say, 'we've done the analysis, and you can lift the lockdowns now.' They want to see the paper. They want to see the evidence."