Access to Information: Strengthening Participatory Democracy

Recently, I participated in two interesting events:

What stood out for me was the following:

  • The right to access government information has become critical for citizens wishing to be involved fully in the functioning of a modern democracy.
  • Despite its history and outward robustness, democracy remains a fragile form of government which can be diminished without proper vigilance and checks and balances, including broad citizen participation.

Access to Information as a Right to Support Democracy

The Supreme Court of Canada has determined that access to information is a quasi-constitutional right (see Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23). In citing paragraph 2(b) of the Charter of Rights and Freedoms (freedom of expression), the Supreme Court of Canada affirmed that access to information“ is a derivative right which may arise where it is a necessary precondition of meaningful expression of the functioning of government.” In simple terms, if a person does not have relevant information, it is impossible to provide input to, or express an opinion on government actions. And without public input or scrutiny, oversight of government is weakened and democracy could be at risk.

As the Information Commissioner of Canada, I see first-hand how well this important right is being exercised, and whether the necessary checks and balances are in place to ensure that citizens can participate meaningfully in the democratic process. As an independent Agent of Parliament, my function under the Access to Information Act is to investigate complaints of access denied (or delayed), to make recommendations to departments for remedies, and, when necessary, to refer or bring difficult cases to the Federal Court for resolution.

The purpose of access to information legislation is first and foremost to facilitate democracy. This was expressed clearly in Dagg v. Canada (Minister of Finance), (1997) 2 SCR 403 where two distinct aspects of the democratic process are cited:

  • That citizens have the information required to participate meaningfully in the democratic process.
  • That politicians and bureaucrats remain accountable to the citizenry,

Protecting Democracy: Building Trust, Resiliency and Public Participation

In an ideal democratic setting, there is trust between people and their institutions. There is a free and open flow of information. One way to do this is through ‘open government’, where governments take the lead on releasing information, rather than putting the onus on the citizen. Governments, academics, and civil societies from around the world will discuss the importance of opening government at the OGP Global Summit in mid-December. I too will be participating in this summit and I look forward to these discussions.

The strength of a democracy can be related directly to how much information is in public hands. Access to information has been called the single most important instrument (after elections) for ensuring accountability in a democracy. More information means better informed citizens participating in the democratic process.

Everyone must be vigilant in ensuring that there is trust, resiliency and public participation to strengthen our democratic system.

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Last week, the Supreme Court of Canada rendered an important decision related to solicitor-client privilege in the context of the Alberta access to information legislation. This decision may have an impact on access to information rights at the federal level. I will be posting a blog on this decision soon. More to come…

The Standing Committee on Public Safety and National Security is reviewing Bill C-22 An Act to establish the National Security and Intelligence Committee of Parliamentarians and to make consequential amendments to certain Acts. Check out my submission to the Committee on my website. I invite you to follow the Bill through the legislative process.

Will Canada turn the corner?

Will Canada turn the corner on access to information? The Liberal Party campaigned on a platform of openness and transparency, so we have been waiting for proof that this government is serious about modernizing the Act. They have taken some important steps. For the first time at the federal level, the mandate letters of the newly appointed cabinet ministers were released publicly. Just this spring, all fees have been eliminated, except for the $5 fee for the original access application. It is also a good sign that this government has announced a new Open Government Action Plan for 2016-2018, which includes modernizing the access to information and other transparency initiatives.

ETHI conducted a fulsome review of the Act in the spring of 2016. It made 32 recommendations and identified those that should be prioritized in the first phase of amendments. These priorities were selected due to their greatest impact on transparency. For the most part, their priorities aligned with those that I had identified. The report urged the government to move forward with an important series of recommendations in the first phase. The Government of Canada has responded to a report from the House of Commons Standing Committee on Access to Information, Privacy and Ethics (ETHI) on how to modernize the Act and signaled that changes are coming.

The government response is positive yet timid in its commitments. It does not address the recommendations from the parliamentary committee. It leaves room for a number of possibilities on what will appear in the actual legislation. I encourage the government to follow the committee’s recommendations.

It has been a long journey for me, and my office. The last few years have involved numerous interventions with government and elected officials, a special report to Parliament, appearances before a parliamentary committee, social media chatter and stakeholder meetings. Nothing less than the health of our democracy has been at stake and it is time to recoup the ground that we have lost since the legislation was first enacted in 1983.

It has become evident that something needs to be done. A serious “culture of delay” had settled in and federal government officials regularly denied access to government information and documents. Somewhere along the way, legislation meant to open things up and ensure that citizens could benefit from information and keep government accountable, has produced a slow and arcane system that seems bent on denying access. As a result, my office has handled over 10,000 individual complaints related to slow or partial responses, or denied requests.

This is the golden opportunity to re-establish Canada as a leader in government transparency. I am confident the government can, in the first phase of amendments, find the right balance between the public’s right to know and the government’s need to protect limited and specific information. It doesn’t mean that we open the floodgates, and harm people and institutions that need their information protected. But freedom of information is a fundamental characteristic of a healthy democracy and its citizens’ right to access information is paramount. Canadians want and deserve more.

GUEST POST: Looking to a bold future for access

Today marks Right to Know Day with celebrations in over 20 countries around the world. This is our opportunity to raise awareness about our right to access as a fundamental human right and as a right to access government information. In Canada, this is a quasi-constitutional right which has also been recognized by our Supreme Court as a derivative right of freedom of expression protected by section 2(b) of the Charter of Rights and Freedoms in certain circumstances. I welcomed this opportunity to host with Carleton University an afternoon seminar on access to information and open government, to launch the Grace-Pépin Access to Information Award, and to invite Jayme Poisson, an investigative reporter with the Toronto Star. Jayme is the winner of the Greg Clark Award and chose to study access to information.

I’ve asked Jayme to write a guest post on her experience with access, including her study on the subject.

jayme-poisson-and-the-commissioner

Right to Know Day is a perfect occasion for journalists, along with people from all over the world, to take pause and think about the values of open government that we all strive for.

Yesterday marked my last of several days spent in the Office of the Information Commissioner of Canada, where I have had the opportunity to talk frankly with the civil servants who work there, including Commissioner Suzanne Legault. The stint (and a previous stint at the Office of Ontario’s Information and Privacy Commissioner) are the result of an award I received through the Canadian Journalism Foundation. The award, named after the legacy of the great Canadian journalist Greg Clark, is designed to allow a journalist early in her or his career to delve into an issue that will help them improve in their craft.

I wanted to study access to information in Canada because my experience with using access legislation to obtain government records for the stories I am researching has been mixed. For every success I have had, there has been a brick wall or two. I want to better understand the intricacies of the legislation that binds government officials who are charged with deciding what they can and cannot release. My time at the offices of both information commissioners has helped me gain that understanding, as well as given me a better grasp of the recourses available in the appeal and complaint processes overseen by their offices. I am very grateful for the opportunity.

The Access to Information Act itself, which has not been updated since 1983, needs to be modernized. On Monday, I participated in a seminar for Right to Know Week at Carleton University. A panel I sat on, with fellow journalists Sean Holman and Justin Ling, touched on ways the legislation hinders the release of information in the public interest because of things like overly broad exemptions that can be applied to records, such as how governments make decisions. We also discussed the problematic fact that the Act does not cover the offices of MPs and Senators and the Prime Minister himself. And we spoke about the need for more resources and better training for government officials who are tasked with releasing this pertinent information.

These are not new suggestions. They are among the 85 recommendations that Commissioner Legault has made with the goal of modernizing the Act and bringing Canada to the forefront of government transparency globally (a role we have fallen far, far behind in). She told me, and later said during her speech at Carleton on Monday, that she is optimistic that our current government is committed to meaningful changes such as giving her office order-making powers. Commissioner Legault also speaks of the need for a shift in culture, where government’s are open by default. She told me she has already noticed a change in this new government and the ways in which its officials have already begun to increase transparency. It’s an attitude shift, illustrated by the Honourable Scott Brison, President of the Treasury Board, showing up to Monday’s seminar (something that should also give you a sense about the previous government’s priorities to access). During his remarks Mr. Brison reaffirmed Liberal election promises, including cutting down dismal response times. “We’ve already come a long way,” Mr. Brison said. “We can do better.”

I hope our government does do better, because an open government is better for Canadians. I realize these changes won’t be simple. But I hope they’ll be bold.

As the Commissioner herself says: “The hard work begins now.”

Jayme Poisson is an investigative reporter with the Toronto Star. She is studying access to information in Canada as the 2016 recipient of the Canadian Journalism Foundation’s Greg Clark Award.

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Spotlight on Right to Know Week

I hope everyone had an enjoyable summer. Now that there are signs of the changing season, I wanted to share the exciting events planned over the next few weeks.

There are several events lined up for September starting with the 2016 Information Summit organized by the BC Freedom of Information and Privacy Association in Vancouver on September 22. I look forward to attending the event and will be discussing the modernization of the Access to Information Act.

This year, Right to Know Week takes place from September 26 – October 2. Events of the week raise awareness of access to information rights while promoting freedom of information as essential to both democracy and good governance. Watch this space for events across the country. I am kicking off the week with Minister Brison and Dean André Plourde with a seminar at Carleton University, organized with the School of Journalism and Communication and the School of Public Policy and Administration. If you are in the National Capital Region, I encourage you to register for this exciting event to learn more about access and journalism, open government, and major public policy issues in the context of access.

As always the return of Parliament brings a renewed sense of excitement to Ottawa. Expect the government response to the Report of the Standing Committee on Access to Information, Privacy and Ethics on the Access to Information Act and, watch for the first phase of amendments to the Act.

The OIC had its own share of excitement following the receipt of additional funding, it welcomed a number of new employees in the past two months. As well, Toronto Star journalist Jayme Poisson, the 2016 recipient of the Greg Clark Award, will spend four days in our office in September to better understand the inner workings of access-to-information requests and complaints. This Award provides an early-career journalist the chance to gain insight on a specific subject. We look forward to having Jayme join us.

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Latest News! Positive advancements for access

What a month! A flurry of activities related to access to information has made the past few weeks very busy for the Office of the Information Commissioner.

First of all, the Standing Committee on Access to Information, Privacy and Ethics tabled a report containing 32 recommendations based on its review of the Access to Information Act. I appeared before this Committee twice since last February to discuss the recommendations I submitted to Parliament in my special report last year.

Other stakeholders shared their opinions and expertise during this review, and I would like to take this opportunity to thank them for their input.

I am very pleased that the Committee agreed with several of my proposals, including a legal duty to document, order-making powers for the Information Commissioner, the ability of my office to review Cabinet confidences, and a stricter application of the exemption on advice and recommendations. In conjunction with the Committee’s review, public consultations on reforming the Act were initiated by the Treasury Board Secretariat in May.

Secondly, Treasury Board held public consultations on the government’s third Open Government Plan. This is a requirement of Canada’s participation in the Open Government Partnership. I submitted my comments on various initiatives that will allow for greater transparency and government information sharing.

Thirdly, Treasury Board’s decision to provide additional funding for our inventory reduction strategy is most welcome. This funding will allow us to hire contract investigators to process the backlog of complaints. We will certainly have our work cut out for us, as the funding is available for the current fiscal year only.

Last but not least, I tabled my annual report on June 16. The report covers the period between two governments and it shows a change in attitude with regards to access to information.

annual_report_2015-2016_EN

As I have already noted, 2016 is the year for transparency and access to information. The activities we’ve seen are positive signs of the government’s desire to improve the access to information regime.

The next test, however, will be following through on those commitments in the fall by passing legislation the government has promised. That legislation will need to boldly address the growing expectations of the Committee, institutions, and access requesters.

The Act is ripe for amendments

The Access to Information Act (the Act) no longer strikes the right balance between the public’s right to know and the government’s need to protect information. Although the Act was intended to shine a light on government decisions, it has become a shield against transparency. For this reason, in March 2015 I issued a special report, Striking the Right Balance for Transparency, with 85 recommendations that would recalibrate this essential balance.

On March 31, 2016, the government announced a two-phased approach for improving the access to information regime. The first phase would see a bill introduced in Parliament consistent with the mandate letter of the President of Treasury Board, with a few minor additions. The government is currently consulting Canadians on a number of proposals in relation to the first phase. The second phase would involve a more comprehensive review of the Act, set to start in 2018, with legislative reviews every five years.

Although I understand the government’s desire to deliver quickly on its specific promises, I am disappointed with this approach. The Access to Information Act is clearly outdated and severely outranked nationally and internationally. Comprehensive reform of the Act is long overdue and should be undertaken promptly to meet the information realities of the 21st century.

The Act is currently being studied by a parliamentary committee, who will issue a report on its study in June 2016. I appeared before this committee on May 19, 2016. In light of the government’s two-phased approach for improving the access to information regime, I suggested to the committee that specific recommendations stemming from my report be prioritised. If implemented, these recommendations would have the greatest impact on transparency. Priority recommendations include:

  • extending coverage of the Act to certain institutions, such as ministers’ offices and institutions that support Parliament and the courts;
  • establishing a comprehensive legal duty to document, with appropriate sanctions for non-compliance;
  • addressing delays to ensure timeliness;
  • repealing the exclusion for Cabinet confidences and replacing it with a mandatory exemption;
  • narrowing the exemption for advice and recommendations and the newly created exemption for Cabinet confidences, so that these exemptions focus on the interests at stake;
  • creating a public interest override for all exemptions;
  • strengthening oversight of the right of access by adopting an order-making model; and
  • ensuring mandatory periodic review of the Act, with the first review commencing in 2018.

In short, these recommendations will increase timeliness, instill discipline in the system, and improve transparency and accountability. During my appearance, I recommended that implementing these recommendations and taking bold action are necessary to ensure Canadians access rights are protected.

You have a right to know. I encourage you to participate in the online consultation that the government is holding as it reviews the Act. This way, your voice can be heard during this importance process.

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A New (Old) Wave of Transparency?

We are seeing what appears to be a new wave of transparency in Canada. As Professor Mary Francoli recently said upon the release of her latest progress report on the government’s open government action plan, we are at an “interesting crossroads when it comes to open government.” The new government is committed to an accountable government that is “open by default.” At the same time, even within government there is a recognition that greater transparency will require a “cultural change” which will take some time and effort.

In the past, I have echoed these sentiments, particularly in my report on modernizing the Access to Information Act. The recommendations that I have provided are aimed at strengthening information management, ensuring timeliness, aligning the Act with open government initiatives, and providing a framework for proper and independent oversight – each of these elements would help foster a more open government. But as many ways as there are to promote transparency, there are just as many to avoid it. Even a modern and progressive Act will not be enough without a real cultural shift.

For me, the current transparency wave that we are seeing is not something entirely new – rather, it is an attempt to restore principles that were foundational to our democracy. This new wave is part of an older wave that began a long time ago. In fact, when the Act was first drafted in 1982, there was already a presumption of openness underlying it.

An excellent example of an inherent culture of openness is provided by public servants in Sweden, who this year are celebrating the 250th anniversary of their freedom of information legislation, which was the world’s first FOI law:

A transparent government is conducive for democracy. It is a pre-condition for political processes and it is something that we embrace and support very strongly in Sweden”. Per Sjögren, Ambassador for Sweden to Canada.

Here in Canada, Don Lenihan and I have written about the need for an integrated vision of open government. A culture of openness can prevail if the principle of open by default extends beyond data to include information and dialogue.

In speaking about a Canadian vision of Open Government, Don Lenihan says We defined Open Government in terms of three streams: Open Data, Open Dialogue and Open Information. […] We not only need to make data available or information, we need to be good at dialogue”

While a change of culture is needed within government, all Canadians have a role to play in ensuring that transformation occurs. This begins with holding public discourse to a higher standard – one that does not trivialize complex issues, but rather demands real accountability through open information and dialogue.

The new wave of transparency in government is a sure and positive sign, but those of us in the access community recognize that it needs to be part of a larger wave that goes back to the roots of our democracy. Both carry the same message: government must be accountable, and the only way to ensure accountability is to provide useful information in a timely manner to allow for meaningful democratic participation.

 

Share your thoughts about how to transform the culture of openness and transparency in the comments section below.

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