An Opportunity to Lead: Duty to Document

Access to information relies on good recordkeeping and information management practices. When records are not created or appropriately preserved to document decisions, rights under the Access to Information Act are denied. This, in turn, prevents government accountability and transparency.

It used to be that keeping records was as simple as storing notes in a filing cabinet. But in today’s world, none of us is immune to the new world order of information, not even governments. Today, the sheer speed and volume of information being created presents a constant challenge. Technology both aids and hinders our ability to preserve information. And in the ever-accelerating information landscape, the responsibility for creating and preserving government records has become a real issue. In 2013, for example, I released a special report on the use of instant messaging by government employees, in which I concluded that the use of PIN to PIN Blackberry messaging constitutes a real threat to access to information rights.

Recently, we’ve seen some high-profile examples of failure in the duty to document, whether it be the so-called “triple delete” scandal in British Columbia or the criminal charges related to gas-plants in Ontario. With ever greater frequency, I’m asked to investigate complaints about requests for records that should exist, but for some reason, do not.

Earlier this year, my provincial and territorial counterparts across Canada collaborated on a joint resolution to address precisely this issue. As a collective, we called on our respective governments to create a legislated duty to document deliberations, actions and decisions, with enforcement provisions to ensure that Canadians’ right of access to public records remains meaningful and effective. I also made specific recommendations on this issue in my report on modernizing the Act.

A legislated duty to document, with sanctions for non-compliance, protects access to information rights by:

  • Creating official records;
  • Facilitating better governance;
  • Increasing accountability; and
  • Ensuring a historical legacy of government decisions.

For Canada, this challenge presents a real opportunity – an opportunity to lead by example. If the government wants to arrive at open and accountable government, then this is the way forward.

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A Time For Openness

A new year brings with it new possibilities. This year, the stars are aligning. This is the year for a renewed commitment to transparency in government. This is the year for access to information.

Here in Canada, we have a newly-elected government that has promised to “set a higher bar for openness and transparency.” In part, this will be achieved through a much-needed review of the Access to Information Act towards modernizing it to meet today’s progressive norms.

But it’s not just in Canada that we’re seeing promising developments. In 2016, access to information will be celebrated worldwide. September 28 is already recognized internationally as Right to Know Day, but UNESCO recently voted to add the further designation of “International Day for the Universal Access to Information.” And this year’s theme for World Press Freedom Day, which occurs on May 3rd, is: This is your right! Access to Information and Fundamental Freedoms.


2016 also marks the 250th anniversary of the world’s first freedom of information law, which was passed in Sweden and Finland in 1766. It was in that year that legislators first recognized the fundamental role that freedom of information plays in a democratic society.

What is this role, and why is it so vital and essential for us all?

Freedom of information – or access to information, as we call it at the federal level in Canada – recognizes the right of citizens to access government information. In 1983, when the Access to Information Act came into force, there were only a handful of global freedom of information laws. In today’s world, openness and transparency have become accepted norms.

Today, we have over 100 access laws around the world. Through our computers, by virtue of our smartphones and tablets, we have at our fingertips access to vast amounts of information. Public information should be no different. It is like the source code of government – it allows us to see behind the curtain; to understand how our government really functions, to get informed and to get involved. It allows us to hold our government to account for its actions and decisions.

Over the past year alone, access to information was implicated in a wide array of matters of public interest, ranging from Senators’ expenses to funding for an environmental organization, to the long-gun registry, even the vandalism of mailboxes. According to the Supreme Court of Canada, which has declared access to information a quasi-constitutional right, citizens must have access to “the information required to participate meaningfully in the democratic process.”

Striking the Right Balance for Transparency - report cover

Over the course of my mandate as Information Commissioner of Canada, I have documented multiple challenges and deficiencies with our current law. As it stands, the Act encourages a culture of delay in providing responses to citizens and is too often applied to deny disclosure. It acts as a shield against transparency. I have recently proposed a comprehensive reform of our Access to Information Act to:

  • Deal with the current realities and expectations of Canadians;
  • Simplify the administration and the application of the Act by focusing only on the interests that legitimately require protection;
  • Increase timeliness in the processing of access requests;
  • Permanently resolve recurring issues;
  • Align the Act with the most progressive and strongest laws in Canada and abroad; and
  • Maximize disclosure in line with a culture of openness “by default.”

The government announced in the mandate letters that it will conduct a review of the Access to Information Act.

It is time for Canadians to become engaged. It is time for each of us to get involved in our democracy. Without access to information, transparency and accountability cannot be achieved.

A new year brings with it new possibilities, and it is up to each of us to ensure that our information rights strike the right balance for transparency.


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