FIPA wants Access to Information Act loophole closed
VANCOUVER, December 8, 2015 – The BC Freedom of Information and Privacy Association (FIPA) is deeply concerned by figures released today that show a significant increase in the use of the “Cabinet confidences” exclusion to deny records to Canadians requesting them.
In her annual report released this afternoon, the Information Commissioner of Canada, Suzanne Legault, reported a surge in the use of section 69 of the Access to Information Act (ATIA), which excludes Privy Council confidences—including Cabinet and Cabinet committee documents—from Canada’s federal access law.
According to the report, “Institutions invoked section 69 more than 3,100 times in 2013–2014. This is a 49-percent increase from 2012–2013, which followed a 15-percent jump the previous year.”
This section of the Act is essentially a black hole for records – once labelled a Cabinet confidence, a record cannot even be looked at by the Information Commissioner or the federal courts, and can be kept from public scrutiny for at least two decades.
“If someone in government wants a record to disappear, all they have to do is call it a Cabinet confidence,” said FIPA Executive Director Vincent Gogolek. “According to Commissioner Legault, it seems like that is happening more and more frequently.”
While the Liberal Party did include a number of reforms to the ATIA in its platform, they have yet to take a position on the Cabinet confidences exclusion. Prime Minister Justin Trudeau also neglected to address this important loophole in his private member’s bill (Bill C-613, the Transparency Act) which he introduced in 2014.
“There’s no reason to keep this black hole in the Act,” Gogolek added. “Many provincial governments have allowed their Information commissioners to examine these records for years without any problem – there isn’t any reason the federal government couldn’t do the same.”
FIPA has strongly recommended that the Cabinet records exclusion be made a harm-based, discretionary exemption with a ten-year time limit, and be subject to review by the Commissioner. This was discussed in detail in FIPA’s response to questions posed by the Office of the Information Commissioner for its 2012 consultation on the ATIA (see pp. 16-18, under question 36).
Vincent Gogolek, Executive Director
BC Freedom of Information and Privacy Association
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