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 The Access to Information Act is clearly outdated and severely outranked nationally and internationally.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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