Access to Information Act turns 30 amid calls for reform

Defence Minister Peter MacKay's helicopter ride that led to embarrassing headlines and head-scratching explanations. Former international co-operation minister Bev Oda's infamous $16 orange juice. Citizenship and Immigration Canada's faked citizenship ceremony.

These are a few of the many stories uncovered in documents obtained through the Access to Information Act, a law that received royal assent 30 years ago on July 7, and came into force almost a year later, on Canada Day 1983.

The act has proved popular over its three decades. Treasury Board statistics show access requests are up 42.7 per cent over the last five fiscal years, in part because the government's 2006 Accountability Act brought more institutions, including the CBC, under the law.

For the same time period, the number of requests completed within the mandated 30-day time limit increased by 35.7 per cent.

So as we commemorate the 30th anniversary of the law, we should conclude that all is well, right?

Not exactly.

Long-standing problems with the access to information law have prompted calls for a substantive change, something the Conservative government, like previous governments, has been reluctant to do.

'What we really need to consider is whether we have the right exemptions, the right balance ... between the information that needs to be protected and the information that should be disclosed.' —Information commissioner Suzanne Legault

For example, instances where requesters got absolutely nothing increased by 49.1 per cent over the last five years. And during the same time period, the number of requests that were extended beyond their original 30-day deadline increased by 18.6 per cent — a slower rate of increase than the growth of requests, but still acknowledged as a problem.

In January, access and privacy commissioners from across the country sent a letter to the Treasury Board, the department responsible for administering access to information, repeating past pleas to reform a law that has been surpassed by legislation with more teeth in other countries.

"During the past decade," the commissioners write, "official statistics and investigations of complaints confirm there has been a steady decline in compliance with access-to-information legislation. Timeliness and the amount of information disclosed are two important measures which demonstrate this trend."

To this end, the federal information commissioner, Suzanne Legault, has been calling for more powers to allow her to order departments and Crown corporations to hand over records if they're taking too long. Right now, she can only recommend that they do so.

But Legault won't give a cut-off period after which she should be allowed to bring down the hammer.

"I think we’d have to look at it more broadly," she said in an interview with CBC News in her office overlooking the Ottawa River. "I just think we need to have a basic timeline that is more defined than what we have now, which basically says a 'reasonable extension under the circumstances.'"

Cabinet confidences exemption

Legault has also echoed the demand of her predecessors by asking for the power to view records considered to be cabinet confidences.

Under the law, a department can withhold a document if it's deemed to be one that cabinet uses to make a decision. This exemption has been likened to a loophole the size of a Mack truck, into which governments can throw all kinds of records, some of which may simply run the risk of embarrassing a minister if made public.

As a matter of fact, when many journalists see this exemption, they automatically complain, such is the level of their suspicion. If a requester complains to the information commissioner about this exemption, Legault's investigators do not have the right to review the records to determine if the exemptions are just.

Admittedly, governments should — and in some cases, must — retain the right to keep certain information secret. But that is balanced by the public's right to know. Other institutions covered by the act, including Crown corporations like the CBC, have their own exemptions for competitive and other reasons. 

"What we really need to consider is whether we have the right exemptions, the right balance, if you wish, between the information that needs to be protected and the information that should be disclosed," says Legault. "This is the information age.… Cabinet confidences are still not reviewable by this office. And that is a huge issue."

Legault announced Friday her office will undertake a review of the Act to make recommendations to Parliament for changes.

When CBC News requested an interview with Justice Minister Rob Nicholson, his spokesperson said he was unavailable, and, instead, emailed a link to a discussion paper the department issued in 2006.

"It is possible that the review of sensitive cabinet confidence information by the information commissioner and the courts would expose and undermine the collective decision-making of ministers and would run contrary to the principles of collective decision-making by ministers and their accountability for those decisions to Parliament," the paper concluded.

The government doesn't talk much about access to information, other than to point out that it introduced the 2006 Accountability Act to apply it to 70 more institutions. The act also ushered in the significant "duty to assist clause" that obliges information officers to be as helpful as possible.

While advocates applaud these changes, they have consistently argued that they don't go far enough.

So why the lack of appetite for further reform? Now that the Harper government has a majority, it's acting quickly on several of its priorities, but access to information does not appear to be one of them.

One of the Conservative Party's predecessors, the Reform Party, used access to information in a way that few parties had ever dared, and experienced great success in keeping the Chrétien government on its toes.

The 2006 Department of Justice paper cited by Nicholson concluded: "There is a widely held view that the Access to Information Act is not broken, but that over time we have learned some lessons about how the system works which can help us to make it better."

It would be nice to know what some of those lessons are.

If you have knowledge of this issue that you'd like to share, please email david_mckie@cbc.ca