New legislation to update Canada’s access to information system fails to follow through on the promises made by the Trudeau government over the last two years. It will do little to expand the reach of the act, improve timelines, or limit wildly-used exemptions that frustrate the disclosure of information.
But the government is nevertheless selling the bill as a big step forward.
“A guiding principle of our government is openness and transparency,” said Treasury Board President Scott Brison in unveiling the bill.
The government pitched the relatively narrow changes to “modernize” the act as a first step in a longer process to bring in more serious reforms.
If approved, the act will give departments the power to outright deny requests more easily, including situations where the access request would require searching through such a large number of documents that it would “unreasonably interfere with the operations of the government institution” or in situations where the request is “vexatious” or made in “bad faith.”
“If you’re in a situation where you’re doing something you really wouldn’t wanna end up on the front page of the newspaper or on vice.com the next day, you probably shouldn’t do it.”
Currently, departments do not have the power to simply axe requests under those criteria, and generally work with the requester to finesse or fix the requests. The government promises that will continue to happen. The government expects that change will speed up the sluggish system, but provided no details of data to suggest it would make a significant impact.
The legislation, however, fails to through on the centrepiece of the Liberals’ platform commitment on transparency: To “ensure that Access to Information applies to the prime minister’s and ministers’ offices.”
Speaking to reporters on Monday, Brison used some very tenuous logic to contend that they had, in fact, followed through on the commitment.
“We are fulfilling our mandate commitment — we are extending the Access to Information Act to ministers’ offices and to the Prime Minister’s Office for the first time ever,” Brison told reporters, before adding the important qualifier: “Through proactive disclosure.”
The Access to Information Act has never had a provision on “proactive disclosure.” It will be added in this legislation by Brison — allowing him to claim that the act will soon apply to the prime minister’s and ministers’ offices, like his platform promised.
The legislation requires that the government proactively release background briefing documents prepared for ministers when they take their job, and sheets of talking points readied in advance of Question Period or committee appearances.
Those documents, however, offer little insight into government, beyond what the government already wants to be made public. More sensitive information, like briefing notes sent to the minister, will not be released — only their titles will be published. The documents will also, undoubtedly, be written for public consumption. Proactive disclosure will not release the type of sensitive or useful information covered by the access to information act, and ultimately leaves the ability to disclose, or not to disclose, in the hands of government.
The actual promise made by the Liberal Party, not the promise that Brison touted to reporters on Monday, was to ensure that citizens, journalists, and researchers could file requests to obtain information that the government opts not to make public.
“If you’re in a situation where you’re doing something you really wouldn’t wanna end up on the front page of the newspaper or on vice.com the next day, you probably shouldn’t do it,” Prime Minister Justin Trudeau told VICE News in a sit-down interview when asked about the proposed powers, before he won the election.
“In general, people should have access to how decision are made and why the decisions are made by their elected officials,” he said.
The legislation does boost mandatory disclosure for Members of Parliament, requiring they report hospitality expenses and release details on contracts paid for by their offices.
One significant change in the legislation empowers the Information Commissioner’s Office to compel documents to be released, instead of requiring they file a lawsuit in court, where they find a department breaching a section of the act.
The legislation also allows limited sharing of resources between departments who respond to the requests.
The reforms, however, amount to little more than tinkering in a system that has been called broken at its core.
The delays on their transparency pledges have come with little explanation.
“Canadians’ information rights are not adequately protected.”
In 2015, Brison’s office walked back plans to introduce legislation — instead, promising a “review” in 2016. By the end of the year, the rhetoric had changed again.
After a Parliamentary committee drafted a report offering a clear set of recommendations on how Ottawa could overhaul the system, Brison’s office responded that they would implement some of the reforms by “early 2017,” with a full review of the act — the basis for more reforms — coming by 2018.
But even on Monday, Brison tempered expectations that much more would be coming. He did not repeat a commitment that ministers offices would ever be subject to the act, nor did he make much mention of what was to come in 2018.
The extended delay has been disastrous for reporting and accountability in Canada. Canadian Journalists for Free Expression recently awarded the system a failing grade: D-.
Information Commissioner Suzanne Legault has, similarly, blasted the inaction.
“The act has fallen behind modern standards,” she told a Parliamentary committee. “The result is that Canadians’ information rights are not adequately protected. In my view, a comprehensive reform of the act is long overdue and should be undertaken promptly to meet the information realities of the 21st century.”