'Sunset clauses' for sensitive records are common in democracies around the world.Ashley Fraser/Globe and Mail
The federal government is advising public servants to begin releasing historical records after designated time thresholds, a significant shift in public policy that for decades has kept information hidden from Canadians.
On Wednesday, the Treasury Board announced that it was introducing “sunset clauses” – which establish a date at which sensitive records can be released, often 20, 25 or 30 years after their creation – for federal records. These clauses are common in democracies around the world.
But Canada, unlike its closest allies, had no process in place to open decades-old records that were once deemed sensitive. The situation has led to a crisis for historians, who have had to rely on the public archives of other countries to research Canada.
The new policies are recommendations and not enacted in law, however it is the most important step Canada has taken to modernize the way it handles historical records since it adopted its access to information law in 1983.
The government’s announcement follows a Globe and Mail investigation published last fall that exposed the numerous barriers Canadian historians face in accessing records, including news that documents from the First World War were being denied for privacy reasons – even though all the affected parties have been dead for decades.
The piece was part of The Globe’s Secret Canada project, a sweeping probe of the country’s dysfunctional freedom of information regime, which found that public institutions are regularly breaking access laws.
Before coming to power in 2015, Liberal Leader Justin Trudeau campaigned on a promise to update federal access law. He vowed that a Liberal government would be “open by default.”
Since then, federal Information Commissioner Caroline Maynard has warned that the system is getting worse.
Treasury Board President Anita Anand called Wednesday’s announcement a “game-changer.”
“Prior to today, if you were a public servant, you had no framework to encourage you, to motivate you, to release documents,” she told The Globe. “I expect all departments to follow this guideline to ensure government documents are accessible.”
The Liberal government will review federal access legislation in 2025, but Ms. Anand said she didn’t want to wait until then, which is why she pushed for the recommendations.
“This is just a first step. We are not done,” she said. “This entire policy guidance on the disclosure of historical records is a message to public servants that we are going to be releasing historical records. Period.”
The announcement was both applauded and criticized by historians.
Timothy Sayle, an associate professor of history and the director of the international relations program at the University of Toronto, noted that the recommended sunset clause for records relating to international affairs and defence is 50 years.
“I find this outrageous, but bizarrely, at the same time, it’s an improvement on what we have now,” he said. “It really sends an awful message. Fifty years is an exceptionally long time ago. That’s 1974.”
Mr. Sayle said he’s particularly concerned that the recommendation will send a message to analysts that anything less than 50 years old should no longer be released.
Typically, researchers obtain historical records from government departments by filing access to information requests. The issue has been that those requests are assessed under legislation that was designed to scrutinize the sensitivity of modern records. The current law does not account for the way the passage of time diminishes the sensitivity of certain information.
The international affairs and defence record category is a discretionary exemption, meaning public servants have always been able to use their judgment when determining if a file should be released. Often, because requests are evaluated based on outdated legislation, they err on the side of caution and withhold records.
But now, Mr. Sayle is worried that denials will become the default.
“I’m really worried that analysts and reviewers are going to misinterpret this signal and suggest that things that are less than 50 years old are going to need to be withheld,” he said.
“For example, right now I’m seeking and receiving information about the lead up to the war in Iraq, which is now more than 20 years old. While there are redactions, quite a bit of that information is being released to me. Now, how is an analyst going to look at this?”
Richard Provencher, a spokesperson for Library and Archives Canada, said that the archives worked closely with the Treasury Board on the policy and is now “refining its implementation plan.” He noted that records will not be automatically open based on the new guidelines and access legislation will still apply.
Access laws – sometimes called freedom of information or right to information legislation – exist in countries around the world and throughout Canada at the federal, territorial and provincial level and, in some cases, municipally. They establish a process to access public records that have not otherwise been released and enshrine into law the principle that people have a right to know how their public institutions are being run and how their tax dollars are being spent.
All access laws account for the fact that some records must be kept secret in order for government to function, such as documents that would compromise national security. This is why legislation also includes exemptions and exceptions.
But other countries have also considered the fact that records become less sensitive over time, which is where sunset clauses come in. The United States, Britain, Australia and New Zealand, as well as democracies such as France, Germany and Sweden, among others, all have processes in place to open previously closed records.
In the new guidelines, the Treasury Board established time thresholds such as 30 years for records relating to “economic interests” – for example, documents that would contain sensitive trade secrets – and 100 years for records that are protected by solicitor-client privilege.
Interestingly, Canada used to have something similar. In the 1970s, cabinet passed a series of directives that established a “30-year rule” for historical record release. But when the Access to Information and Privacy Act came into effect in 1983, it overrode those directives.
Historians and researchers have spent decades calling on successive federal governments to reinstate some type of sunset clause. Last October, the federal Liberals declined to make any changes to the legislation after a nine-month review of access law that recommended, among other things, changes around the way that historical records are handled. The House of Commons committee on access to information had recommended establishing a 25-year rule for historical records.
In February, Conservative Leader Pierre Poilievre took aim at the government’s access policies, saying that a Conservative government would “speed up response times” and “release more information.”