The Canadian Government Has Further Softened Access to Information Privileges

Image via Pixabay user, Jodylehigh.
In a decision handed down earlier this month, the Federal Court of Canada ruled against Canada’s Information Commissioner Suzanne Legault, when it decided that the government can’t impose deadlines on any of its departments that take an unreasonable amount of time to respond to access to information requests.

The Federal Court case began after Legault filed a complaint on behalf of a citizen who requested documents concerning the sale of surplus Canadian military assets to Uruguay. Under the Access to Information Act, the public has the right to access government documents with limited exceptions, making the act immeasurably valuable to journalists reporting on the affairs of government. In this case, the curious citizen was forced to wait for nearly three years to receive the documents they requested from the Department of National Defence. In fact, the DND only delivered the documents after Legault filed her complaint with the federal court, possibly as an attempt to render the case moot and get it thrown out.

This situation might seem like an extreme example, but evidence has continually shown that since Conservatives entered power, the fortress that guards government information has become nearly impenetrable. Last year Canadian Journalists for Free Expression reported that from 1999-2000, the federal government disclosed information requested under the act about 40% of the time. By 2011-2012 under the Conservatives, this number dropped to 21%. In a recent Centre for Law and Democracy report Canada ranked 56 out of 96 countries for our quality of access to information laws.

It seems that there’s an overarching culture of secrecy within the federal government, which promotes a resistance to sharing information, even in the most arbitrary of cases. “I think we do see an awful lot of ‘public’ institutions that don’t really get the public nature of their information,” says Lisa Taylor, a lawyer and former journalist, who now teaches media law at Ryerson’s School of Journalism. “Nor do we see recognition that we’re owed this (information) unless there is a really good reason.”

How exactly did we get here? How does a government seemingly systematically decrease the accessibility of information that’s protected under a legislative act? Well, I’ll tell you. Under the Access to Information Act, if departments request an extension above and beyond the 30 days they are initially given to respond to the request, they are then only required to respond in a “reasonable period of time.” Obviously, this wording leaves room for massive interpretation, giving government departments carte blanche to conjure up any myriad of excuses to explain why they must delay the release of documents. Technical issues, interdepartmental communications, and nearly anything else, could constitute as a valid reason for delaying the process. The result is a possibly intentional stalling tactic that can leave journalists sitting on their hands for years as they wait for documents that are often integral to their reporting.

The difficulty in defining timeliness, when put in a judicial context, also explains why the Federal Court has little ground to stand on to merit punishing government departments that choose to delay. “What we have is a piece of legislation whose powers are more apparent than real. This is a pretty toothless act,” says Taylor.

This brings us to the justification of this month’s ruling against the information commissioner, and the eerie reality that Canadians are quite restricted when it comes to gaining insight into the affairs of our government. “Anyone should be concerned about acts that don’t give any real oversight and don’t give anyone the opportunity to try to resolve what’s clearly a problem,” says Taylor. “Because it gives us the illusion of laws protecting access to information.”

The DND case also reads like a bad omen for future transparencies, as it may set a precedent for government departments to get slap happy with dragging their heels on releasing information. “I think other departments could really take a page from DND’s playbook and be very confident that there is not going to be any significant scrutiny,” says Taylor. “Or even if there is scrutiny, it’s impotent scrutiny because nobody can really force the hand of any department.”

Even so, Winnipeg NDP MP Pat Martin is trying to do just that. He’s pushing a private member’s bill that aims to majorly reform the Access to Information Act. The proposed Bill C-567 would give considerably more power to the information commissioner—giving her the authority to order government departments to produce information under a deadline she deems appropriate. But Taylor is skeptical of a bill that gives heavy power to a non-elected official. “With Martin’s proposal, as much as it would completely resolve situations like the DND debacle, it creates a giant stick for the information commissioner to carry.” Bill C-567 goes into its second hour of debate on March 29.

Meanwhile, the information commissioner has until April 2nd to decide whether she would like to file an appeal with the Federal Court. A spokesperson for the office of the information commissioner responded via email saying they were “analyzing the decision and considering our options.”

Taylor hopes the decision is appealed, and eventually finds its way to the Supreme Court, if only for the exposure. “It would allow if nothing else for people to maybe spill some more ink on this,” she says. “And maybe get people more engaged in the discussion.”

What will it really take for Canada to gain a healthier level of government transparency? At this rate, we may never know.

@GraceLisaScott