BC Freedom of Information and Privacy Association
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Freedom-of-information or access-to-information laws are not something that the average person thinks about every day, but they are a part of laws in every province and territory in the country and are designed to give people the right to obtain records from public institutions. Having access to the information they need to make informed decisions is what enables citizens to participate in their communities, their province, and their country. Governments and other public institutions are supposed to have transparency that fosters trust amongst individuals toward public institutions. As to the completely redacted study released to Saskatoon’s Shercom Industries, by the Tire Stewardship of Saskatchewan (TSS), the non-profit organization overseen by the Saskatchewan Ministry of Environment, the message that the 22-page redacted document sends to the public is one of secrecy and a willful disregard of the essence of access-to-information laws.
In an article series for The Globe and Mail, titled “Secret Canada,” Robyn Doolittle and Tom Cardoso look at how the freedom-of-information system is supposed to work versus how it actually works. For the series, they interviewed more than 200 people who interact with the access system across Canada, including current and former freedom-of-information (FOI) co-ordinators and managers, appeal officials, politicians, political staff, and members of the public service, as well as high-frequency users of the system, including academics, members of environmental advocacy groups, consultants and lawyers. Those who work and interact with the access-to-information system say there exists a widespread belief that transparency is not a priority. As part of its reporting, The Globe filed a series of FOI requests designed to test precedents that had been set by appeals bodies and the courts, including precedents dealing with contracts. Of those requests, seven percent were granted full access, fifty-three percent were granted full access, thirty-six percent were told there were no documents, and four percent were denied access.
“It is perhaps as an underpinning of democracy that freedom of information is most important. Information held by public authorities is not acquired for the benefit of officials or politicians but for the public as a whole. More importantly, freedom of information is a key component of a transparent and accountable government. It plays a key role in enabling citizens to see what is going on within government, and in exposing corruption and mismanagement. Open government is also essential if voters are to be able to assess the performance of elected officials and if individuals are to exercise their democratic rights effectively, for example through timely protests against new policies.” Toby Mendel
Toby Mendel is Head of Law Programme at ARTICLE 19, a human rights NGO based in London with a mandate to promote respect for freedom of expression (http://www.article19.org)
The Access to Information Act is supposed to grant access to information with exemptions being the exception to the rule and kept as limited as possible. The question begs to be asked, are we a true democracy, if ultimately, our elected officials and the organizations they oversee can decide what information the public is allowed to see? James Turk, the director of the Centre for Free Expression at Toronto Metropolitan University follows the thinking of Mendel by saying, “Information belongs to the people. The government is the caretaker.” Saskatchewan is one of six Canadian jurisdictions, including Manitoba, New Brunswick, Nova Scotia, the Yukon, and Nunavut, where the Information Commissioner lacks the
power to order the disclosure of documents that have been withheld. Instead, the Commissioner is limited to making recommendations, which public institutions can follow or disregard as they wish, leaving the applicant only one option. Saskatchewan’s laws put
government agencies themselves in charge of what they ultimately disclose. Information and Privacy Commissioner, Ron Kruzeniski, says his office should be given the power to force government agencies to release information and he believes the province’s access to information legislation is long overdue for a makeover to prevent it from stifling the public’s right to know.
“The citizen only has the choice of going to court, spending $10,000 or $15,000 to get a judge to look at it and make an order,” said Kruzeniski. “I think that’s an unfair burden and it’s time that this be switched around.” Currently, the office reviews or investigates a file, such as a citizen being denied a freedom of information request, and then makes a recommendation to the body from which the information is being sought. That body can then choose to comply with the recommendation or ignore it. As it stands, public bodies in Saskatchewan disregard, in part or in full, more than half the decisions Mr. Kruzeniski makes, according to the Office of the Information and Privacy Commissioner‘s latest annual report. In the 2022-23 fiscal year, the office saw “full compliance” with its reports only 47 percent of the time.
Kruzeniski has made dozens of recommendations for changes to the Freedom of Information and Protection of Privacy Act (FOIP), the Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP), and the Health Information Protection Act (HIPA), which together establish the access to information and privacy rights of citizens. Mr. Kruzeniski noted that the province has never had a public review of the two main information laws FOIP and LA FOIP, which were passed in 1992 and 1993. These he says, should undergo review every five years. In 2015, Kruzeniski recommended thirty-five amendments. In 2018, the government did enact a few of his recommended amendments, but not the crucial one that would give his office more power. Now in the final year of his second term, Kruzeniski says he will make a new set of recommendations.
In a statement to The Globe and Mail, Saskatchewan government spokesperson Noel Busse said the province is not currently considering changes to its freedom of information laws, and that Saskatchewan is “committed to supporting the public’s right to obtain access to public records and to the protection of privacy.” The question has to be asked, though, how ‘committed’ is the government, when it continues to push aside the recommendations of the Commissioner, an officer of the Legislative Assembly who is appointed through a resolution made in the Assembly?
Nicole Sarauer, the house leader of Saskatchewan’s Opposition NDP, told the CBC in October 2023, that their party experiences the same frustrations as the public when trying to access information. “It benefits government for the legislation to be as it is, and for the Commissioner to not have the power to enforce orders, because it allows them to be less transparent than they should be,” Sarauer said. Transparency fosters trust and at a time of a ‘free-fall’ in public trust of institutions and rampant ‘fake news,’ trust is something that every public institution should have their sites set on.
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