Fallen Behind – Update (2019)

Stanley Tromp is updating his 2008 book, Fallen Behind: Canada’s Access to Information Act in the World Context.

From Stanley Tromp:

The first edition of this book in 2008 detailed how Canada’s Access to Information Act had fallen behind the rest of the world’s FOI laws. Since then, the problem has only grown far worse (enough so that the revised book could well be entitled Fallen Further Behind). 

In the authoritative Global Right to Information Rating system of the world’s 128 national laws, Afghanistan ranks number 1, while Canada – which ironically has so worked hard to transform that nation into a modern democracy – ranks 58. Mexico ranks second, followed by (in order) Serbia, Sri Lanka, Slovenia, Albania, India, Croatia, and Liberia.  

In his preface to the new edition, Halifax human rights lawyer Toby Mendel writes, “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.”

In Ottawa this year, Bill C-58 (which is now law) granted the Information Commissioner a barely adequate power to order the government to release records, and this is merely a baby step forward. When will the ATI Act ever be raised to accepted global standards? In this 2019 federal election campaign, Canadians should insist upon answers.

Chapter updates include:

Chapter 1 – The Constitutional status of FOI 

In 2019, of the 128 nations with freedom of information laws, 78 of these grant citizens some kind of right to access state-held information in their Constitutions or Bill of Rights; 63 of those are explicit and general, while the others are implied or topic limited. Some such right is present in Afghanistan, India, Pakistan, Israel, South Korea, Mexico, New Zealand, South Africa, and many Eastern European nations. Such guarantees date back to 1766 in Sweden, 1789 in France, and 1795 for the Netherlands. Canada’s Constitution does not include this right, although several Canadian court rulings have described the right as “quasi-constitutional.”

Chapter 2 – Cabinet records 

The records of cabinet discussions are excluded completely from the scope of the FOI law only in Canada and South Africa. Here, the Information Commissioner does not even have the legal right to review such records. Yet cabinet confidences were subject to a mandatory exemption in Canada’s original Freedom of Information Act of 1979.

The other Commonwealth statutes’ FOI laws have mandatory exemptions for cabinet records, and more than half have general public interest overrides than can permit their release, with a freer status for factual background papers, none of which are present in Canada. New Zealand’s statute does not contain any blanket exemptions for cabinet confidences, and ministers are encouraged to proactively release cabinet material.

The latest Commonwealth FOI law, that of Ghana (2019), contains an exemplary harms test for cabinet records, whereby they can be withheld if they would “undermine the deliberative process.” Cabinet records can be withheld for 20 years in the ATIA, but only for 10 years in Nova Scotia’s FOI law.

The ruling Liberal party also broke its 2015 electoral pledge to have the prime minister’s and ministers’ offices covered under the ATIA. 

Chapter 3 – Policy advice  

The ATIA exemption for policy advice (Section 21) is far broader than in most of the world, and it is being vastly overapplied to withhold countless records in the public interest. Unlike with the ATIA, the FOI laws of South Africa, the United Kingdom, Scotland, and others include a harms test for their policy advice exemptions, which can also be overridden by public interest overrides.

The FOI laws of eight provinces and territories have shorter time limits for withholding records in their policy advice exemption than the 20 years in the ATIA (e.g., five years in Nova Scotia). In some non-Commonwealth countries, the use of the exemption ends when the policy topic is decided. Many nations and provinces have a much longer list of factual background papers that may be released notwithstanding this exemption than is found in the ATIA.

Chapter 4 – Scope of coverage

Canada has created many wholly owned and controlled entities to perform public functions and spend billions of taxpayer’s dollars while excluding these from the scope of FOI laws, under the pretense that they are private and “independent.” 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. On this topic, Canada has fallen farthest behind the world FOI community. Unlike the ATIA, the FOI laws of most nations cover all such legal entities that manage public services, or are even 50 percent publicly owned or funded, or have boards appointed by government, or are vested with public powers. Good models are found in India, New Zealand, Kenya and South Africa. Most provinces (notably Quebec) contain much broader definitions of what is a “public body.”

Chapter 5 – Duty to document, and record retention  

The greatest single threat to the FOI system today may be “oral government.” This 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. For the past three decades, Canadian information commissioners have protested that some officials have no hesitation in admitting, even advocating this practice.

To counter this grievous harm, Canada urgently needs a comprehensive law to create and preserve records, with penalties for non-compliance. The United States, some Australian states and New Zealand have broad legal requirements to create full and accurate records. In the FOI laws of several nations, agencies must ensure all their records are catalogued in a way that facilitates access, and in some of these, records may not be destroyed after an FOI request for them has been received, even if they had already been scheduled for destruction.

Chapter 6 – The public interest override

The Conservative Party pledged in 2006 to “provide a general public interest override for all exemptions,” yet this promise was not fulfilled. Yet the FOI laws of 92 other nations – and all the Canadian provinces and territories – contain much broader public interest overrides than are found in the Canadian ATIA. These include Mexico, New Zealand, South Africa, Ireland, the United Kingdom, India and most Eastern European nations. Many of the laws state that the override should apply to all the FOI exemptions and be mandatory, not only apply to two exemptions and be discretionary, as is the case in the ATIA.

Chapter 7 – Harms tests and time limits

The Conservative party pledged in 2006 to subject all ATIA exemptions to a “harms test,” yet this promise was not fulfilled. Several ATIA exemptions – such as policy advice, solicitor-client privilege, information from other governments – still lack explicitly-stated harms tests and so are known as “class exemptions,” a situation that falls seriously short of world FOI standards. Worse, in 2006 the government amended the ATIA to enable it to withhold draft internal audits, in Sec. 22.1(1).

Chapter 8 – The Commissioner and order power

The Liberal party kept its 2015 pledge to grant the information commissioner the power to order the release of government information in Bill C-58. Yet the commissioner has strongly objected that this 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. 

There are 82 countries that allow the public to file appeals with an external oversight body, and in around half of these countries, the oversight body is able to issue legally binding orders. These include Mexico, Pakistan, India, New Zealand, Scotland, and the United Kingdom. The same power is held by the information commissioners of five Canadian provinces.

The ATIA still needs amendment allow the Information Commissioner to review the decision to invoke the Cabinet confidences to exclusion to a review, as most nations permit.