Access to Information (CA0070)

7. Access to information
Issue to be addressed
Canadians want to have easier access to information held by the Government of Canada,
including their own personal information.
Commitment
The Government of Canada will advance its commitment to more open and transparent
government. We will:
• undertake a full review of the Access to Information Act
• improve tools available to people who request government information
• improve transparency about personal information that the government holds
Lead department(s)
Treasury Board of Canada Secretariat (TBS); other departments and agencies across the
Government of Canada
Milestones
What will we do? How we will know we succeeded? What is our
deadline?
7.1 Undertake a broad review
of the Access to Information
Act, including examining:
• the extent of coverage of the
act, including the range of
institutions that are subject
to the act and who can make
requests
• ways to improve the
timeliness of responses to
requests
• the regime of exemptions
and exclusions
• appropriate protections for
information relating to
The full review begins within one year of
royal assent of Bill C-58
Stakeholders are engaged through online
consultations and in-person engagement.
Indigenous organizations and
representatives are engaged about how
the Access to Information Act needs to
evolve to reflect Canada’s relations with
Indigenous peoples, including how
information and knowledge of Indigenous
communities is protected and accessible.
The full review
will begin within
one year of royal
assent of Bill
C-58
35
What will we do? How we will know we succeeded? What is our
deadline?
Indigenous peoples and
governance
• how new technologies could
be used to improve the
functioning of the system
and service to the user
All sectors of Canadian society,
including Indigenous
organizations and
representatives, will be
engaged through online
consultations and in-person
engagement on issue clusters
(TBS)
7.2 Issue a plain language guide
offering clear explanations of
exemptions and exclusions
under the Access to
Information Act and the Privacy
Act and their relationship to
the work of federal institutions
(TBS)
A plain language guide is issued June 2019
7.3 Increase the number of
summaries of previously
released access to information
requests posted to
open.canada.ca and available
through informal requests
(TBS)
50% of institutions publishing summaries
by June 2019
June 2019
75% of institutions publishing summaries
by June 2020
June 2020
7.4 Make it easier for
Canadians to access
government information by
improving the Access to
Information and Privacy (ATIP)
Online Request Service
(TBS)
The number of participating government
institutions is expanded by 50 institutions
in each year of the Action Plan
June 2020
Canadians, including users from a variety
of backgrounds and levels of ATIP
experience are engaged to improve the
At least 2 rounds
of user testing
conducted
36
What will we do? How we will know we succeeded? What is our
deadline?
ATIP Online Request Service through user
testing and feedback
before
June 2020
7.5 Enable government
institutions to provide
requesters with responses to
access to information requests
electronically, subject to any
necessary limitations to protect
privacy and security
(TBS)
Rather than receiving paper copies or
through compact discs, requesters can
receive their requests through a digital
means
June 2020
7.6 Improve online information
about how to make an access
to information or personal
information request
(TBS)
User testing demonstrates that users find
the online information about how to
make an access to information or
personal information request helpful
January 2020
7.7 Improve transparency
about the personal information
held by government by making
descriptions of Canadians’
personal information holdings
(known as personal
information banks (PIBs))
available on open.canada.ca in
a consolidated, searchable
format
(TBS)
PIBs from 60 government institutions are
available via open.canada.ca
June 2019

7. Access to Information

The Government of Canada will advance its commitment to more open and transparent government. We will:

• undertake a full review of the Access to Information Act
• improve tools available to people who request government information
• improve transparency about personal information that the government holds

Lead department(s)

Treasury Board of Canada Secretariat (TBS); other departments and agencies across the Government of Canada

Milestones

7.1 Undertake a broad review of the Access to Information Act, including examining:

• the extent of coverage of the act, including the range of institutions that are subject to the act and who can make requests
• ways to improve the timeliness of responses to requests
• the regime of exemptions and exclusions
• appropriate protections for information relating to Indigenous peoples and governance
• how new technologies could be used to improve the functioning of the system and service to the user

All sectors of Canadian society, including Indigenous organizations and representatives, will be engaged through online consultations and in-person engagement on issue clusters (Treasury Board of Canada Secretariat)

7.2 Issue a plain language guide offering clear explanations of exemptions and exclusions under the Access to Information Act and the Privacy Act and their relationship to the work of federal institutions (Treasury Board of Canada Secretariat)

7.3 Increase the number of summaries of previously-released access to information requests posted to open.canada.ca and available through informal requests (Treasury Board of Canada Secretariat)

7.4 Make it easier for Canadians to access government information by improving the Access to Information and Privacy (ATIP) Online Request Service (Treasury Board of Canada Secretariat)

7.5 Enable government institutions to provide requesters with responses to access to information requests electronically, subject to any necessary limitations to protect privacy and security (Treasury Board of Canada Secretariat)

7.6 Improve online information about how to make an access to information or personal information request (Treasury Board of Canada Secretariat)

7.7 Improve transparency about the personal information held by government by making descriptions of Canadians’ personal information holdings (known as personal information banks, or (PIBs)) available on open.canada.ca in a consolidated, searchable format (Treasury Board of Canada Secretariat)

For more details about the commitment text, milestones, self-identified success criteria, and estimated completion dates see, https://open.canada.ca/en/content/canadas-2018-2020-national-action-plan-open-government#toc3-4

Start Date: August 2019

End Date: Varies according to milestone

Context and Objectives

The opinions expressed during the discussions with civil society stakeholders suggest that along with beneficial ownership and Feminist Open Government, Commitment 7 is viewed as one of the three most important proposed areas of reform in the current action plan. The principal reason for this, and the view most often articulated to the IRM researcher is perhaps best expressed by Cara Zwibel, Director – Fundamental Freedoms Program and civil society member of the MSF, who noted,

access to information is the most basic building block of open government. And, if you don’t have a good access scheme the rest falls short.

Commitment 7 continues work started in previous action plans and, more recently, Commitment 1 of Canada’s third action plan that aimed at improving Canada’s Access to Information Act, 1983. [41] Prior to the recent passing of legislative amendments to the Access to Information Act, there had been no substantive revamping of the Act since it originally was passed into law in 1983. As a result, Canada has fallen behind other countries with regard to global standards for the right to information. In the period spanning from October 2017 to May 2019, Canada’s standing in the Global Right to Information (RTI) rankings – a global comparative assessment of right to information laws – fell from 49^th to 57^th in the world. [42] When introduced in June 2017, [43] Bill-C58, the package of suggested reforms to the Act, proposed dividing the Act into two parts; the first dealing with access to government records, and the second with the proactive publication of information. [44] The initial changes were widely critiqued as a regression in rights to information and as failing to enhance government transparency. [45] Subsequent amendments that were made as the Bill proceeded through the legislative process tempered, but did not diminish concerns about the proposed reforms and their implications.

In Standing Committee hearings about the Bill conducted in May 2019, Carolyn Maynard, the current Information Commissioner of Canada, countered such claims arguing that, “the current version of the act [Bill C-58] is definitely a better bill than what we have currently. The act right now is 35 years old, and what is being proposed in the amendments has made it better.” [46] She further claimed that the concerns that led to the former Information Commissioner to characterize Bill C-58 as ‘regressive’ [47] had been addressed. Particularly noteworthy in this regard is: (i) the granting of new powers to the Information Commissioner, including the authority to order government institutions to take specific actions; [48] and (ii) mandating the proactive disclosure of particular types of government information including: prime ministerial mandate letters to ministers, briefing packages for new ministers and deputy heads, briefing note titles, briefing materials for Parliamentary Committee appearances, and Question Period notes. [49]

Bill C-58 received Royal Assent in June 2019. The first part of the updated Access to Information Act deals with access to operational government records and the second with access to government-promoted records. The second part of the Act legislates the proactive publication of a broad range of government information by the Prime Minister’s Office, ministers’ offices, senators, members of Parliament and administrative institutions that support Parliament and the courts, government departments and agencies, and Crown corporations, including information about the use of public funds, on a predictable schedule without the need to make a request.

While some stakeholders, including the government, viewed the Bill as an improvement over the status quo, information rights advocates were critical of this division seeing it as throwing the “the very essence of the Access to Information Act under the bus” [50] not least because Bill C-58’s provisions were seen to “result in the permanent exclusion of the prime minister and ministers’ offices and the House and Senate themselves from ever being subject to review under the Access to Information Act.” [51]

The implementation of Commitment 7 can be reasonably expected to contribute to facilitating access to certain types of information held by the government of Canada. However, the extent to which completing the milestones and the proposed success criterion will facilitate Canadians’ abilities to access and make use of government information is unclear; not least because the outcome of the pending review of the amended Access to Information Act is not, and cannot, be known at this time..

The commitment aligns with the OGP values of Access to Information and Civic Participation. Despite the presence of some public facing elements (e.g., disclosure of non-sensitive metadata on institutional activities), as written, Commitment 7 does not meet the requisite criteria specified in the IRM Procedures Manual to be assessed as aligning with the value of Public Accountability. As per the latter document,

Formal accountability commitments include means of formally expressing grievances or reporting wrongdoing and achieving redress… A commitment that claims to improve accountability, but assumes that merely providing information or data without explaining what mechanism or intervention will translate that information into consequences or change, would not qualify as an accountability commitment. (p. 27)

The extent to which the milestones align with Access to Information and Civic Participation values is mixed. Milestones 7.1 and 7.4 are relevant to the OGP value of Civic Participation insofar as they both involve consultations with a wide array of civil society stakeholders. Milestones 7.3 and 7.4 also align with the OGP value of Access to Information given that they pertain to releasing details about information requests, and to making it easier to use the ATIP online request service.

Milestones 7.2, 7.5, 7.6, and 7.7 specify improvements in client services to be implemented that involve providing new instructional resources, more efficient service delivery, and an expanding of the document formats that can be used to complete access to information requests. They are the ‘public face’ of the commitment, focusing on making the existing ATIP system more user-friendly and efficient. Based on the value definitions provided in the IRM Procedures Manual, it is unclear how these activities align with any of the four OGP values.

Milestones 7.1, 7.2, 7.3, and 7.5 are uniformly verifiable; either the proposed action takes place, or it does not. The verifiability of milestone 7.4 is contingent upon specifying the benchmark from which an increase in the number of summaries of previously-released access to information requests posted to open.canada.ca and available through informal requests is meant to be assessed. Verifying milestones 7.4, 7.6, and 7.7 likewise requires exercising a degree of interpretation with regard to measurement.

Milestone 7.1 has been carried forward from Commitment 1 (Milestone 1.3) of the Canada’s third action plan. It calls for a full review of the Access to Information Act one year after Bill C-58 receives Royal Assent. Its presence in the action plan is bittersweet for many information rights advocates, including civil society members of the MSF, insofar as it is perceived as reflecting the lack of substantive movement by the GoC on the access to information front. In his comments on the July-August 2018 draft commitment posted to google docs, Toby Mendel, Executive Director for the Centre for Law and Democracy (CLD), summarised the situation as follows: [52]

While it is welcome that the government has promised a “full review” of the Access to Information Act, at the same time simply promising a review represents a very weak commitment, especially given that the Third Action Plan already promised just this. The context for this is that Canadians have been debating the need for access to information reform for literally decades and that the nature of the reforms that are needed is very well known. Key stakeholders –including CLD, other access to information activists, successive Information Commissioners and even the Standing Committee on Access to Information, Privacy and Ethics –all agree on the main reform needs, even if minor differences remain. As a result, while it is still important to have a consultation, there is certainly no need for very protracted consultations.

Recommendation: Instead of simply promising a review, which might lead to no further action, the government should go beyond that and promise an actual result, ideally tabling a bill in parliament but at least publishing a set of government endorsed reform proposals.

The other milestones are, for the most part, not directly affected by the new legislation. As noted above, they are mainly oriented toward improving service delivery to clients.

Commitment 7 and its milestones constitute continuing steps in revitalizing Canada’s information access infrastructure. The civil society representatives consulted in preparing this review expressed disappointment across the board about the commitment’s lack of ambition, suggesting that it marked yet another failed opportunity in the area of access to information, with the newly amended Act falling short of what was expected and hoped for. Bearing in mind the latter consideration, the uncertainty surrounding the outcome of the pending review of the Act, and that the proposed measures of success exemplify Goodhart’s Law, [53], Commitment 7 is assessed as having a minor potential impact on open government in Canada.

Next steps

In his report on Canada’s progress in implementing its third action plan, the former IRM researcher for Canada, wrote: [54]

Successive IRM reports, as well as opinions expressed at stakeholder consultations across the country, suggest that this commitment [enhancing access to information] is among the most important reform areas in the current action plan, if not the most important (pp.32-33)

Based on his discussions with stakeholders from across the country, the current IRM researcher affirms that that this observation is remains equally valid today.

Access to information is an issue that is firmly ensconced in the guiding legislation. Whether the new legislation exemplifies a shift toward enhanced open government remains subject to ongoing discussion and debate. [55] The limitations of the latest incarnation of the Act are well known and addressing these, will in no small measure be contingent upon the political will to champion further legislative change in this domain. While recognizing the pledge to reviewing the legislation within one year of it having received Royal Assent (i.e., Milestone 7.1) as a positive step, the vast majority of interested parties with whom the IRM researcher consulted viewed Commitment 7 as underwhelming overall. This view is aptly summed up by the words of Professor Teresa Scassa, the Canada Research Chair in Information Law and Policy at the University of Ottawa and past member of the External Advisory Committee of the Office of the Privacy Commissioner of Canada, and of the Canadian Government Advisory Committee on Open Government, [56] who in her comments on the July-August 2018 draft commitment averred, [57]

The Act has been well studied and its deficiencies well-documented. Another review is not much of a commitment.

The IRM researcher recommends that the upcoming review process be committed to moving beyond patchwork legislative reform, and oriented to generating access to information legislation that adheres to best international practices with regard to the right to information laws. For instance, the new powers assigned to Canada’s Information Commissioner are a positive step, but they are limited when compared to those of her international counterparts. Likewise, exclusions to ministerial advice and cabinet confidences, and the continued exemption of ministerial offices and the Prime Minister’s Office from ATIP requests remains a major point of contention. Regulations aimed at minimizing the time taken to complete ATIP requests that extend beyond current rules also need to be considered if Canadian access to information law is to be on par with global leaders in access to information law.