It may be hard to believe, but Canada’s Access to Information Act (ATIA) contains a black hole where requested information can disappear without a trace.
And that black hole is being fed more and more government information.
In her annual report for 2015, Information Commissioner Suzanne Legault reported a surge in the use of section 69 of the ATIA, which excludes Cabinet documents from Canada’s federal access law.
According to the Commissioner’s 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.”
Once a government official says a document is Cabinet confidence, neither the Information Commissioner nor the Federal Court can look at the document to confirm that it is, and that the exclusion is being applied appropriately.
But this supermassive problem is not being addressed. In the Speech from the Throne, the words ‘access to information’ were never mentioned. The Liberal Party did include a number of reforms to the ATIA in its platform, but they have been very quiet about what if anything they plan to do about 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.
FIPA has long 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 our 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). The federal Commissioner has also recommended this change.
In British Columbia and elsewhere in this country, provincial information commissioners have been examining claims of provincial Cabinet confidences for decades. There have been no problems with leaks or with Cabinet ministers being unable to frankly discuss important issues.
The new Trudeau Liberal government should act promptly to rid the federal ATI system of this information black hole as well.