Federal ATI Reform Plans Not Enough

The long-promised Liberal amendments to the Access to Information Act (ATIA) were finally revealed just before Parliament’s summer recess, and the reaction was swift and overwhelmingly negative.

FIPA and a number of other groups sign a letter to the Minister responsible, Scott Brison, setting out some of C-58’s many shortcomings and demanding the bill be withdrawn.

Federal Information Commissioner Suzanne Legault (who was not consulted by the government on the proposed legislation) was also highly critical, saying “If passed, it would result in a regression of existing rights.”

Commissioner Legault issued a special report which detailed her many criticisms of what the government is proposing.

Some of the criticisms of the Bill include:

Although Bill C-58 does give the Information Commissioner the power to order government departments to release information (a good thing), it continues to prevent the Commissioner from looking at records if the government claims they are cabinet confidences, thereby allowing the government to stash away records it doesn’t want to see the light of day. Furthermore, if the government doesn’t like an Order from the Information Commissioner, their appeal to the Federal Court is not a judicial review of her decision, but a completely new proceeding. This is a complete waste of time and money.

The PMO and ministers’ offices will be required to release certain types of information (travel expenses, contracts, etc.), but the Commissioner will be shut out from reviewing the operation of this. But the most important thing is that Canadians will not have the right to request information from PMO or ministers’ offices.

But the government has also given itself the power to refuse to respond to an information request that it deems to be ‘frivolous or in bad faith’.

The power to prevent such abuse is included in many ATI laws, but that power should rest with the Information Commissioner, not with the department that is subject of the request.

In fact, there are very few frivolous or vexatious requesters abusing the system. Between 2010 and 2015, British Columbia had more than 20,000 freedom of information requests, but public bodies made only 20 applications to the Commissioner for the right to refuse to respond to such requests. That’s right, one in a thousand even make it to a hearing before the Commissioner.

If the government is going to crack down on abuse of the system, it should look at jurisdictions that have introduced sanctions on public bodies to prevent the release of information.

Bill C-58 will also allow federal institutions to refuse to respond to a request unless that request fulfills all of the following requirements:

  1. the specific subject matter of the request;
  2. the type of record being requested; and
  3. the period for which the record is being requested or the date of the record.

This is essentially carte blanche for government officials to refuse to respond to requests. It will especially hurt inexperienced requesters (members of the general public are the largest single category of requesters under the federal ATIA).

Sadly, in doing so, the government largely passed over the unanimous recommendations made by the Standing Committee on Access to Information, Ethics and Privacy (ETHI) in June 2016 to get rid of the $5 fee charged to all requesters of information would expand transparency and save the government money, as each cheque costs the government more than $50 to process. The Liberals have already eliminated all fees except that $5, but C-58 opens up the possibility of charging up to $25 per request, along with other fees that could be imposed as well.

There is also no duty to document in C-58, a major shortcoming.

On the positive side, C-58 includes measures to ensure the Commissioner has the power to examine records the government claims are legally privileged. Timely action by the federal government was needed after a Supreme Court of Canada decision last year threw doubt on a number of ATI laws when it struck down provisions in the Alberta law.

Treasury Board President Scott Brison has indicated that the government may be open to amendments, stating “We want to work with parliamentarians, independent officers of Parliament and stakeholders to ensure that this first major Access to Information Act reform in three decades reflects that intention.”