Illustration by Romain Lasser
A chorus of opposition MPs and experts on civil liberties and government transparency are calling for an overhaul of the federal access to information regime, warning that without urgent changes to the system democracy is threatened.
Last week, The Globe and Mail began publishing Secret Canada, an investigation into the country’s broken access regime. Under access laws in jurisdictions across the country, sometimes known as freedom of information laws, public institutions are required to disclose information in response to formal requests, with limited exceptions.
The Globe’s project has revealed that public institutions throughout Canada are routinely breaking these laws by overusing redactions and failing to meet statutory timelines, and that they are facing few – if any – ramifications for ignoring precedents set by courts and appeals bodies.
As part of its investigation, The Globe filed access requests to every federal, provincial and territorial government ministry and department across the country, to audit each jurisdiction’s performance on access and transparency. The analysis found that the federal government ranked second-to-last in response times, with an average of 83 days to process a request. Only Ontario fared worse, with an average of 122 days.
Two opposition MPs said that the Office of the Information Commissioner – the institution responsible for handling complaints about federal access requests – should be given additional powers that would help it oversee the system.
One of them, Matthew Green, an NDP MP, said Prime Minister Justin Trudeau’s government has had opportunities to repair access to information at the federal level, but has never followed through.
“This is about Justin Trudeau making a commitment to Canadians that he was going to have the most open government in the history of Canada,” he said. “That’s just simply not been the case.”
Mr. Trudeau’s first private members’ bill – tabled in 2014, when he had recently been elected Leader of the Liberal Party of Canada and had not yet formed government – proposed the “Transparency Act,” which would have amended federal access law. The bill never made it to a second reading.
Then, during the 2015 federal election campaign, Mr. Trudeau vowed to make sweeping changes to access to information. Those changes would have included making ministers’ offices – including his own – subject to access law, and making the government “open by default.”
Those and other access commitments in the Liberal Party’s 2015 platform were never adopted, though the government eventually made some changes to federal access law as part of Bill C-58 in 2019.
The House of Commons committee on access to information, privacy and ethics, which Mr. Green sits on, is expected to table a report on the state of the federal access system early next week.
Conservative MP and committee chair John Brassard said that the access system is “contributing to a decline in our democracy.”
“We’re seeing openness and transparency being challenged, and we’re seeing an arrogance on behalf of this government to not deal with those challenges,” Mr. Brassard said. “How can you not come to the conclusion that the system is in fact broken?”
Mr. Brassard called on Mona Fortier, Treasury Board President and the minister responsible for administering federal access provisions, to undertake a full review of the legislation and “fix the system.”
He added that the Office of the Information Commissioner’s budget should be set by Parliament instead of the government, and that the institution should be able to review cabinet confidences – secret documents related to cabinet deliberations.
The Globe asked Ms. Fortier twice for an interview for this story. Both times, her staff said she was unavailable. Her office did not respond to written questions.
Caroline Maynard, the current Information Commissioner of Canada – whose office Mr. Green and Mr. Brassard want to empower – said the Access to Information Act needs to be amended. The legislation came into force in July, 1983, and has not been substantially updated since.
“We’re celebrating 40 years of the act, but there’s nothing to celebrate,” she said in an interview. “It’s very discouraging.”
Calls for reform are also coming from organizations outside government.
Cara Zwibel, a lawyer and director at the Canadian Civil Liberties Association, said “political will is the hardest part” when it comes to changes to access policy.
“There are hundreds of recommendations from past studies, from the Information Commissioner, and from parliamentary committees that have looked at this,” Ms. Zwibel said. “There’s a lot of ink spilled on what needs to change. It’s just getting people to actually do it. That’s the problem.”
The Treasury Board of Canada Secretariat completed a 2½-year review of federal access to information law and policies in December. Experts decried the final report, which made no recommendations. At the time, Michael Wernick – who served as Clerk of the Privy Council from 2016 to 2019 and was effectively the government’s chief bureaucrat – called the report “tepid and incrementalist.”
In early January, The Globe filed an access request asking for documents related to the Treasury Board’s review, including the solutions it had considered for the various issues facing the federal access system. In the request, reporters asked that the government release the records with minimal redactions, since the review was complete and there was public interest in the government’s deliberations.
The response, sent out last week, came back almost entirely redacted.
With a report from Stefanie Marotta