Michael Wernick, a former public servant who served as Canada’s top bureaucrat, said he was disappointed with the report’s 'tepid and incrementalist' tone.Justin Tang/The Canadian Press
A long-awaited federal review of access-to-information law contains no recommendations, instead offering broad conclusions about the state of the government’s access regime, sparking anger among experts who say a solid action plan is needed to fix Canada’s broken system.
The review, prepared by the Treasury Board of Canada Secretariat and signed by Treasury Board President Mona Fortier, was tabled in Parliament this week. It is the result of more than 2½ years of consultations with academics, journalists, private citizens, businesses, Indigenous groups and the government, and was widely seen by access experts as an opportunity for deeper, systemic changes to the federal access-to-information system, which reached a breaking point during the pandemic.
But the final, 49-page product eschews specific recommendations in favour of “conclusions” on topics such as time extensions, the access-to-information work force and Indigenous information issues.
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For instance, the conclusion for the report’s section on the idea of a public interest override – a legislative change often requested by academics and journalists that would allow otherwise-redacted documents to be released if they were deemed to be in the public interest – says, simply: “The public interest is a critical determinant in deciding what information should be disclosed, alongside the diminishing risks related to the passage of time.”
Michael Wernick, a former public servant who served as Canada’s top bureaucrat, said he was disappointed with the report’s “tepid and incrementalist” tone. “You don’t detect any ambition for fundamental reform,” he said.
Mr. Wernick was the federal government’s Clerk of the Privy Council from 2016 to 2019. In November, he appeared before the House of Commons committee on access to information and argued for significant changes to the existing law.
While the report offers useful analysis, it lacks a concrete action plan, he said. “In every section, it’s not clear what they actually proposed to do.”
“It’s all written in a very oblique and indirect style.”
Mr. Wernick said he was surprised Ms. Fortier signed off on the report at all, since it is the government’s responsibility to bring proposed legislative changes to Parliament.
In an e-mailed statement, Treasury Board spokesperson Martin Potvin said the government is “continuing to strengthen access to information,” and that the access review “will inform further work to help us create a stronger, more robust, and more reliable [access-to-information] system for all Canadians.”
The federal government, along with every other level of government in Canada, has some form of access-to-information or Freedom-of-Information legislation. Though the laws vary by jurisdiction, they all provide a process by which individuals can formally ask for records held by public bodies that would otherwise be secret.
John Brassard, the Conservative MP who chairs the House of Commons access-to-information committee, told The Globe he was surprised the report contained no recommendations. “It was certainly not what I expected,” he said.
Mr. Brassard’s committee has been conducting its own examination of the federal access system since the fall. It has held eight meetings and heard from 27 witnesses, including public servants, academics, journalists, whistleblowers and lawyers. Every single one has warned of significant delays in responding to access requests, excessive redactions, poor document-keeping practices and difficulties in administering the Access to Information Act, which will turn 40 years old next year.
“If the government’s not going to propose recommendations,” he said, “that really speaks to the importance of the committee’s work.”
“You can’t just keep punting this.”
Based on what the committee has heard so far, Mr. Brassard said it would be extending its study of the access system next year. He also said Ms. Fortier herself may eventually be invited to testify on the report.
University of Winnipeg criminologist Kevin Walby, who runs the university’s Centre for Access to Information and Justice, said the review seemed to put forth “recycled” versions of speaking points the Liberal Party offered in 2015, when access-to-information reform was a part of its platform.
If there are no proposed changes to access law, Prof. Walby said, “then the whole thing just seems very rhetorical, almost like a kind of camouflage for what is a failing access-to-information system.”
Brent Jolly, president of the Canadian Association of Journalists, said the report felt like a “betrayal,” given what the government had promised at the outset of the access-to-information review.
The Treasury Board of Canada Secretariat’s review was required under Bill C-58, a package of amendments to access-to-information law passed in 2019. The process began in June, 2020, and was originally slated to be completed in January, 2022, meaning the final report was delivered nearly a year after its original deadline.
Mr. Jolly wondered why the report was a year late, given its content. Though he agreed with Mr. Wernick that it managed to identify several of the issues with Canada’s beleaguered access system, it was short on solutions.
“I feel like we’re kind of back at the start in a lot of ways,” Mr. Jolly continued. The report felt “hollow,” he said, and “almost laughable” given how much feedback his and other groups provided over the past 2½ years. “This can’t stand.”
“When you’re sold a host of golden rules and promises, it’s a real kick in the teeth when you see all of those completely glazed over,” he said.