Enhance Access to Information (CA0042)

Enhance Access to Information Why do this: Canada was an early adopter of access to information legislation, first introducing the Access to Information Act in 1983. The Access to Information Act maintains openness and transparency by serving the important public interest of enabling public debate on the conduct of government institutions, in turn strengthening the accountability of the Government of Canada to Canadians. In recent years, the need to update the Act has been noted during open government consultations and by the Information Commissioner as well as other stakeholders. It has not been significantly updated since 1983. How will it be done: In March 2016, the Government announced a two-step approach to revitalize access to information: (1) move forward in the near term on the Government’s commitments to improve the Access to Information Act, followed by (2) a full review of the Act, no later than 2018. The Government’s commitments to improve the Act in the near term include: - Making government data and information open by default, in formats that are modern and easy to use; - Eliminating all fees, except for the initial $5 filing fee; 11 - Providing requestors with a written explanation when information cannot be released; - Giving Government institutions and the Information Commissioner authority to decline to process requests that are frivolous or vexatious; - Giving the Information Commissioner the power to order the release of government information; - Ensuring that the Access to Information Act applies appropriately to the Prime Minister's and Ministers' Offices, as well as administrative institutions that support Parliament and the courts; - Undertaking a mandatory legislative review of the Access to Information Act every five years; and - Strengthening performance reporting on the Access to Information program. To make early progress on these commitments, on May 5, 2016 the Government of Canada issued an Interim Directive on the Administration of the Access to Information Act. The Directive sends a strong message across federal institutions that government information belongs to the people it serves and should be open by default. It emphasizes that government information should be available to the public, except in very limited and specific situations when it must be protected for reasons such as privacy, confidentiality, and security. The Directive also directs federal officials to: - waive all Access to Information fees apart from the $5 filing fee; and - release information in user-friendly formats (e.g. spreadsheets), whenever feasible.

1. Enhance Access to Information

Commitment Text:

The Government of Canada will move forward on a first round of concrete proposals to improve the Access to Information Act, informed by the views of Parliament, the Information Commissioner, and consultations with Canadians, and will then undertake a full review of the Act by no later than 2018.

Milestones:

1.1. Seek input from Parliament, the Information Commissioner, stakeholders and through consultations with Canadians on how to revitalize access to information.

1.2. Introduce legislation to move forward on improvements to the Access to Information Act.

1.3. Once this first round of improvements has been implemented, undertake a full review of the Access to Information Act by no later than 2018.

Responsible institution: Treasury Board of Canada Secretariat

Supporting institutions: Justice Canada and the Privy Council Office

Start date: Not specified

End date: Not specified

Editorial Note: The text of the commitment was abridged for formatting reasons. For full commitment text, visit: http://www.opengovpartnership.org/wp-content/uploads/2001/01/Canada_AP3.pdf.

Context and Objectives

This commitment is targeted toward improving the Access to Information Act through consultations with Parliament, the Information Commissioner, stakeholders, and the public. Canada’s Access to Information Act has not been substantially updated since it was first passed in 1983, and it currently ranks 49^th in the world according to the RTI Rating, a comparative assessment of right to information laws.[Note1: See: http://www.rti-rating.org/country-data/. Canada’s ranking of 49th is as of 15 October 2017. ] Calls to reform the Access to Information Act, including from the Information Commissioner, have been a recurring feature of Canada’s OGP stakeholder consultation processes since the first action plan cycle.[Note2: Office of the Information Commissioner of Canada, Letter on Open Government to the President of the Treasury Board (Ottawa: January 2012). Available at: http://www.oic-ci.gc.ca/eng/rr-sl-odi- adi_2012_1.aspx. ] The Information Commissioner’s inclusion as a core stakeholder in the first milestone of this commitment is noteworthy, since her input was not actively sought in the generation of previous action plans. Stakeholders consulted for the preparation of this assessment emphasized the importance of reform, describing the current Act as 'outdated' and 'dysfunctional.'[Note3: These quotes are from Toby Mendel of CLD and Fred Vallance-Jones, respectively, at the Halifax consultation which took place on 12 September 2017.] But while civil society stakeholders active in right-to-information matters have been glad to see the inclusion of this action area, several, including Publish What You Pay-Canada and the Centre for Law and Democracy, expressed unhappiness with the structure and ambition of the commitment as it is phrased. While the commitment addresses a major priority area, uncertainty regarding the nature and extent of reforms which will ultimately be enacted (if any) substantially reduces the potential for impact, as does the fact that, over the past few years, several similar consultations have already been carried out, all of which arrived at similar conclusions regarding the necessary changes.[Note4: See, for example, 'Striking the Right Balance for Transparency–Recommendations to modernize the Access to Information Act', Office of the Information Commissioner of Canada, March 2015. Available at: http://www.oic-ci.gc.ca/eng/rapport-de-modernisation-modernization-report.aspx.]

Completion

Milestone 1.1 was mostly completed before implementation of the action plan formally commenced, with a consultation that was carried out by the Treasury Board in May and June 2016.[Note5: See: http://open.canada.ca/en/content/what-we-heard-revitalizing-access-information-online-consultations-may-june-2016.] A civil society participant in one of the consultations described the process as 'very thorough,'[Note6: Duncan Pike of CJFE, at the Toronto consultation on 15 September 2017.] though other participants noted that the similarities between these recommendations and those produced in earlier processes in 2016 and 2015 suggested the additional consultations were unnecessary.[Note7: See: https://www.law-democracy.org/live/wp-content/uploads/2017/04/17.04.04.ATIA-delay.let1_.pdf.] The House of Commons’ review of the Access to Information Act was also published prior to the start of this action plan, in June 2016. However, the government’s responses to both the public consultation and the parliamentary committee report were published during this action plan, in October 2016.[Note8: Both are available at: http://www.ourcommons.ca/DocumentViewer/en/42-1/ETHI/report-2.] This milestone has been completed.

For Milestone 1.2, on 19 June 2017 the government introduced Bill C-58 in the House of Commons.[Note9: Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts, 1st Session, 42nd Parliament, 2017. Available at: http://www.parl.ca/DocumentViewer/en/42-1/bill/C-58/first-reading.] This bill would make several changes to the Act, namely enhancing the power of the Information Commissioner and expanding proactive disclosure among 240 government institutions, as well as allowing government institutions broader power to dismiss requests. Technically, this milestone has been completed, though it is worth noting that reactions to this bill have been highly negative among civil society. The Centre for Law and Democracy released a joint letter signed by 38 organisations, and a further 26 journalists, academics and other stakeholders, calling for Bill C-58 to be scrapped and replaced with a better reform effort.[Note10: Joint letter to the Canadian government on its proposals to reform the Access to Information Act, Centre for Law and Democracy, 28 September 2017. Available at: https://www.law-democracy.org/live/letter-to-the-president-of-the-treasury-board-demanding-access-to-information-reform/.] First Nations leaders have also called on the government to withdraw Bill C-58,[Note11: Beatrice Britneff, 'First Nations call on Liberals to scrap information access bill', iPolitics, 4 December 2017. Available at: https://ipolitics.ca/2017/12/04/first-nations-call-liberals-scrap-information-access-bill/.] and Canada’s Information Commissioner released an assessment which claimed that the changes would actually result in a regression of existing rights.[Note12: 'Failing to Strike the Right Balance for Transparency: Recommendations to Improve Bill C-58', Office of the Information Commissioner, 28 September 2017. Available at: http://www.ci-oic.gc.ca/telechargements-downloads/userfiles/files/eng/reports-publications/Special-reports/OIC_SpecialReport2017_ENG_Online(1).pdf.]

The government reports in its self-assessment that progress has not started on Milestone 1.3, which is scheduled for 2018.

Next Steps

Successive IRM reports, as well as opinions expressed at stakeholder consultations across the country, suggest that this commitment is among the most important reform areas in the current action plan, if not the most important. However, throughout the consultations in preparation for this report, civil society stakeholders expressed profound disappointment with the government’s progress in improving the Access to Information Act. Dr. Teresa Scassa, a law professor at the University of Ottawa, noted that access to information was an area which had been neglected for years, and continued to be neglected under the current government.[Note13: This was expressed at the Ottawa consultation, 18 September 2017, though her views are more fully expressed on her blog at: http://www.teresascassa.ca/index.php?option=com_k2&view=item&id=262:bill-c-58s-order-making-powers-a-huge-disappointment&Itemid=80.] Publish What You Pay-Canada noted that the proposed reforms failed to address their major frustration in using the system, which is the over-broad exceptions.[Note14: Ottawa consultation, 18 September 2017.] Open North expressed that access to information reform remained the biggest challenge to advancing transparency, noting that at this point it was beginning to overshadow progress in other areas.[Note15: Conversation by phone on 3 October 2017.]

As noted above, civil society has called for Bill C-58 to be significantly improved in order to frontload more necessary reforms, namely to expand the right of filing access requests to the Cabinet and Prime Ministers’ offices, to create a duty to document for officials, to create binding timelines for responding to requests, to formalize fee waivers contained in the May 2016 Interim Directive on the Administration of the Access to Information Act, and to narrow overbroad exceptions and subject them to test for harm and a mandatory public interest override. The IRM researcher recommends that these specific improvements be carried forward as commitments in the next action plan if they are not possible in the current action plan. Another point to consider for future action plans is the lack of technological or innovative proposals connected to this thematic area. The IRM researcher recommends that the government consider technologically innovative solutions to enhance Canada’s right to information system in the next action plan. For example, the Centre for Law and Democracy pointed to the centralised website in Commitment 2, and wondered why it was only being applied for requests for personal information, as opposed to being more broadly utilized for access to information requests.[Note16: Halifax consultation, 12 September 2017.]

1. Enhance Access to Information

Commitment Text: The Government of Canada will move forward on a first round of concrete proposals to improve the Access to Information Act, informed by the views of Parliament, the Information Commissioner, and consultations with Canadians, and will then undertake a full review of the Act by no later than 2018.

Milestones:

1.1.Seek input from Parliament, the Information Commissioner, stakeholders and through consultations with Canadians on how to revitalize access to information.

1.2.Introduce legislation to move forward on improvements to the Access to Information Act.

1.3.Once this first round of improvements has been implemented, undertake a full review of the Access to Information Act by no later than 2018.

Responsible institution: Treasury Board of Canada Secretariat

Supporting institutions: Justice Canada and the Privy Council Office

Start Date: Not specified

End Date: Not specified

Editorial Note: The text of the commitment was abridged for formatting reasons. For full commitment text, visit http://www.opengovpartnership.org/wp-content/uploads/2001/01/Canada_AP3.pdf.

Commitment Aim

This commitment aimed to improve the Access to Information Act through consultations with Parliament, the information commissioner, stakeholders, and the public. The Access to Information Act has not been substantially updated since it was first passed in 1983. Successive IRM reports have suggested that this commitment stands among the most important areas of reform. The commitment calls for consultation on how to revitalise the act (1.1), legislation with preliminary improvements (1.2), and a full review of the act (1.3).

Status

Midterm: Substantial

The consultation (1.1) took place before the beginning of the current action plan, wrapping up in June 2016. The government's response to this consultation, and to a parliamentary committee report on this subject, was published in October 2016.[Note1: Both are available at http://www.ourcommons.ca/DocumentViewer/en/42-1/ETHI/report-2.] An initial reform package, Bill C-58, was introduced in the House of Commons on 19 June 2017 (1.2).[Note2: An Act to Amend the Access to Information Act and the Privacy Act and to Make Consequential Amendments to Other Acts, Bill C-58, 1st Session, 42nd Parliament (2017), http://www.parl.ca/DocumentViewer/en/42-1/bill/C-58/first-reading.] This bill would make several changes to the act. It would enhance the power of the information commissioner and expand proactive disclosure among over 200 government institutions. It would also allow government institutions to dismiss requests which are vexatious or in bad faith, with the information commissioner's approval. Civil society reactions to the bill have generally been negative, calling for a more ambitious reform effort.[Note3: “Joint Letter to the Canadian Government on Its Proposals to Reform the Access to Information Act,” Centre for Law and Democracy, 28 September 2017, https://www.law-democracy.org/live/letter-to-the-president-of-the-treasury-board-demanding-access-to-information-reform/.] For more information, see the 2016-2017 IRM midterm report.[Note4: Michael Karanicolas, Canada Progress Report 2016-2017 (Washington, DC: Open Government Partnership Independent Reporting Mechanism), https://www.opengovpartnership.org/documents/canada-mid-term-report-2016-2018.]

End of term: Substantial

Bill C-58 passed third reading in the House of Commons on 6 December 2017. As of August 2018, it is under consideration by the Standing Senate Committee on Legal and Constitutional Affairs.[Note5: The bill's progress can be viewed at https://www.parl.ca/LegisInfo/BillDetails.aspx?billId=9057528&Language=E, accessed 11 September 2018. ] Milestone 1.2 has therefore been completed. However, Canada made no progress under Milestone 1.3. The government has scheduled Milestone 1.3 work to begin within one year of the passage of Bill C-58.[Note6: An Act to Amend the Access to Information Act and the Privacy Act and to Make Consequential Amendments to Other Acts, s. 93(1).]

Did It Open Government?

Access to Information: Marginal

Civic Participation: Marginal

The passage of Bill C-58 would improve Canada's access to information system, notably by providing new powers to the Information Commissioner, and by expanding proactive disclosure requirements. However, civil society has reacted negatively to these changes. Critics note that most of the important reforms have been pushed beyond the current action plan.[Note7: See, for example, “Joint Letter to the Canadian Government on Its Proposals to Reform the Access to Information Act.” Responses from civil society, academia, and the information commissioner are discussed in more detail in the 2017 midterm assessment, available at https://www.opengovpartnership.org/documents/canada-mid-term-report-2016-2018.] For example, the reforms do not address the Access to Information Act's overbroad exceptions. Other areas of priority, as identified by civil society, include expanding the right to file access requests to the Cabinet and prime minister's offices, creating a duty to document for officials, creating binding timelines for responding to requests, and formalising fee waivers contained in the May 2016 “Interim Directive on the Administration of the Access to Information Act.” In addition, the consultation completed under Milestone 1.1 generated conclusions which were very similar to those produced in earlier processes in 2016 and 2015. Such repetition suggests that the additional consultations may not have been necessary. Given these reasons, and the fact that the commitment was not fully completed, the IRM assesses it as having had only a marginal impact on access to information and civic participation.

Carried Forward?

Canada carried this commitment forward in the next action plan in Milestone 7.1, which calls for a full review of the Access to Information Act. Commitment 7 of the next action plan also includes plans to develop a guide to exceptions and exclusions, increase the availability of information about previously completed requests, improve the online requesting service, and enhance capabilities to respond to requests electronically.