By Stanley Tromp
Stanley Tromp is a Vancouver independent journalist and author of the book Fallen Behind: Canada’s Access to Information Act in the World Context.
Canada’s Access to Information Act of 1982 is an essential law that allows citizens and the media to obtain government records on many vital topics, such as health and safety, crime, public finance and the environment. Yet today it could be equated to a rusted manual typewriter in the iPhone-Twitter age. In 2008, I wrote a book called Fallen Behind , which compared all the world’s freedom of information laws to reveal that our ATI Act had lagged far behind global FOI standards in their level of openness.
Over the past decade, more than 50 nations have passed FOI laws for a total of 128, and such access has come to be recognized by courts as a “human right.” In the authoritative Global Right to Information Rating system of the world’s laws, Afghanistan ranks number 1, while Canada – which ironically has so worked hard to transform that nation from a theocratic dictatorship into a modern democracy – ranks 58th. (The top ten list includes Serbia, Sri Lanka, Slovenia, Albania, India, Croatia, and Liberia.)
The problem has grown so much worse that, indeed, the second edition of this book – to be released later this year – could well be entitled Fallen Further Behind .
In the 2015 election campaign, Liberal leader Justin Trudeau made several FOI reform promises, and after he won, actually kept a few of them. In Ottawa this year, Bill C-58 was passed, which grants the Information Commissioner the power to order government to release records against its will.
Even this new power has received very mixed reviews, mostly negative. The Commissioner has objected that the Bill is in fact a “regression” of existing FOI rights, and the new power is not “a true order-making model” due to five serious failings with it, features that are mostly absent in the rest of the FOI world.
The Liberal party broke its pledge to have the prime minister’s and ministers’ offices covered under the ATIA, instead prescribing only some proactive release of some self-selected records, which is a form of faux transparency.
Overall, as Information Commissioner John Reid said in a 1999 speech: “It amuses me to see the profound change in attitude about access to information which occurs when highly placed insiders suddenly find themselves on the outside. And vice versa!”
To raise our ATI Act to world standards, the law needs a public interest override, a harms tests for all exemptions, some limit on the delays that authorities are allowed to claim, and new rules for officials to create and preserve records so as to defeat the growing menace of “oral government.” This last occurs when officials no longer commit their thoughts to paper, and convey them verbally instead, to avert the chance of the information emerging in response to FOI requests.
We also need FOI coverage of the wholly owned and controlled entities that perform public functions and spend billions of taxpayer’s dollars. Today more than 100 such quasi-governmental entities are still not covered by the ATIA . The exclusion of some of these such as the Canadian Blood Services, the nuclear Waste Management Organization and air traffic controllers could result in harm to public health and safety.
As well, the records of cabinet discussions are excluded completely from the scope of the FOI law only in Canada and South Africa, whereas other nations have a mandatory exemption for it. The ATIA ’s Section 21 exemption for policy advice is far broader than in most of the world, and it is being over applied to withhold countless records in the public interest. (Its 20 year secrecy limit is grossly overlong, compared to the five years set in Nova Scotia’s FOI law.) In the world, 78 nations grant citizens a right to access state-held information in their Constitutions or Bill of Rights, while Canada does not.
“As someone who travels around the world promoting the right to information, it is frankly a source of profound embarrassment to me how poorly Canada does on this human right,” writes Halifax lawyer and FOI expert Toby Mendel. “Given that everyone who uses this system regularly is aware that it is profoundly broken, it is inexplicable that it does not get fixed.”
By stubbornly holding Canada back in such an insular, stagnant backwater within the FOI world, Prime Minister Trudeau is placing our country’s reputation for democratic process at risk. When will the ATI Act be raised to accepted global standards? Will we have to wait another 36 years to finally bring it into the 21st century?
In this 2019 federal election campaign, Canadians should insist upon answers from all the candidates.