Canada’s Access to Information ActMeasuring Up?

Panel 3: Select Country CasesApril 28, 2009 18:15

Americas Regional Conferenceon the Right of Access to Information

Lima, Peru

Freedom of Information in CanadaAll states should enact legislaton to give effect to the right of access to information.(Atlanta Declaration, Key Principle #2)

25 Years Later25 Years Later

How does Canada measure up against theHow does Canada measure up against the

Atlanta Declaration and Plan of ActionAtlanta Declaration and Plan of ActionFor the Advancement of For the Advancement of

The Right of Access to InformationThe Right of Access to Information

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Right of Access to InformationAccess to information is a fundamental human right.(Atlanta Declaration, Key Principle #1)

Access to information is recognized as a quasi-constitutional right by the Supreme Court of Canada.

“The purpose of access to information legislation is to facilitate democracy by helping to ensure that citizens have the information required to participate meaningfully in the democratic process and that politicians and bureaucrats remain accountable to the citizenry.”

Right of access is limited to Canadians and people present in Canada.

Presumption of OpennessAccess to information is the rule; secrecy is the exception.(Atlanta Declaration, Key Principle #4a)

Access to Information Act is based on a presumption in favour of disclosing government-held information.

It provides “a right of access to information in records under the control of a government institution.”

It is “not intended to limit in any way access to the type of government information that is normally available to the general public.”

Coverage of the Access to Information ActThe right of access to information should apply to all branches of government (including the executive, judicial and legislative bodies, as well as autonomous organs) at all levels . . . (Atlanta Declaration, Key Principle #4b)

Applies to Departments and agencies Crown corporations and Officers of Parliament recently added

by the Federal Accountability Act

Does not apply to Parliament Ministers’ Offices Courts

Exceptions to AccessExemptions to access to information should be narrowly drawn, specified in law, and limited only to those permitted by international law. All exemptions should be subject to a public interest override, which mandates release of otherwise exempt documents when the public benefit of release outweighs the potential public harm.(Atlanta Declaration, Key Principle #4g)

“Necessary exceptions to the right of access should be limited and specific.”

Injury tests broadly interpreted, notably “operations of government”

Public interest overrides limited to personal information and third party information

Cabinet documents explicitly “excluded” from the purview of the Act

Exceptions to Access

Exemption Percentage of total exemptions used

Personal Information 30%International affairs and defence 20%Operations of government 14%Law enforcement and investigations 12%Third party information 9%

Top 5 Exemptions

2005-2006 2006-2007 2007-2008 Change

All Disclosed 28% 23% 18% -10%Disclosed in Part 46% 50% 55% 9%Other 26% 27% 27% 1%

Request Disposition

Information Commissioner of CanadaThe requester should be guaranteed a right to appeal any decision, any failure to provide information, or any other infringement of the right of access to information to an independent authority with the power to make binding and enforceable decisions, preferably an intermediary body such as an Information Commission(er) or Specialist Ombudsman in the first instance with a further right of appeal to a court of law.(Atlanta Declaration, Key Principle #4k)

• Officer of Parliament– Appointment subject to Parliamentary scrutiny– Funding for Office – Potential for conflict of interest

• Ombudsman– Protects the rights of requesters under the Access to Information Act– Advocates the benefits of open government

• Complaints resolution – Strong investigative powers, including subpoenas and hearings– No order-making powers – orders issued pursuant to Judicial Review– Resolves complaints through mediation and suasion

• Compliance– Monitors the performance of federal institutions, e.g. Annual and

Special Reports to Parliament– Communicates with Canadians, Parliament and the media

• Mandate does not include public education or research

Order-Making Powers in Canadian Jurisdictions

Compliance Continuum

COMPLIANCE THROUGH

INFORMATION AND PARTNERSHIP

FACILITATING COMPLIANCE

RESPONSES TO NON-COMPLIANCE

Suasion / Resolution

Adversarial

Annual and Special Reports to

Parliament

Advice and Representations to Parliament

News Releases / Media Interviews

Speeches / Presentations /

Information Sessions / Seminars

Input and Representations to Central Agencies, e.g. Treasury Board

Secretariat

Participation at Access to Information Community Events

Federal / Provincial /

Territorial / International Liaison with Information and Privacy

Commissioners

National and International Liaison with Freedom of Information Communities

and Civil Society Groups

International Parliamentary Assistance

Website / Blogs / Podcasts

Right to Know Week

Review of Complaints to Identify

Systemic Issues

Systemic Investigations (Proactive)

Report Cards

Review of Extension Notices

Consultations with Access to Information Stakeholders, including

Institutions and Users

Compliance Programs

Case Summaries and Commissioner’s Findings

Reference Guides / Information

Notices / Best Practices

Investigation Guidelines (GRIDS)

Training

Investigations and Systemic

Investigations (Reactive)

Early Resolution

Well-Founded Complaints Accepted

Commissioner-Initiated Complaints

Mediation / Negotiation

Informal Representations to Senior Officials

Commissioner’s Interpretations of

Policy Positions

Reports of Findings and Recommendations

Special Reports to Parliament

Exercise of Formal Powers, e.g.

Subpoenas / Hearings

Non-Resolved Complaints

Federal Court Actions

Interventions in Court

Referral for Prosecutions

GENERAL APPLICATION

SPECIFIC APPLICATION

State of Access to Information in Canada

• Access to Information Act has not changed significantly over the years.

• Biggest change – Information Technology• Network Federalism• Public-private sector partnerships are the norm• Global, knowledge-based service economy• Expectations of Canadians

– Culture of service – most government information should be readily available and free

– New generation of users born in electronic age

State of Access to Information Canada

• Access to Information Act has not changed significantly over the years.

• Biggest change – Information Technology• Network Federalism• Public-private sector partnerships are the norm• Global, knowledge-based service economy• Expectations of Canadians

– Culture of service – most government information should be readily available and free

– New generation of users born in electronic age

Assessing Performance

• Report card process to assess the performance of institutions in responding to requests– 6 out of 10 performed below average– 30 day timeline becoming the exception rather than the norm– Greater use of time extensions for longer periods of time

• Systemic issues– Deficiencies in information management

• Exacerbated by the rapid pace of technology resulting in more time required to retrieve records and missing records

• Growth in the volume of pages reviewed and processed– Increasing number of consultations between institutions– Insufficient qualified personnel– Lack of leadership

Completion Times

Time Required to Complete Requests

Less than 30 days (57%)

31 to 60 days(20%)

120 days or over(12%)

61 to 120 days(11%)

Improving Performance

• Leadership– Properly assess, resource and improve information management– Develop an integrated human resource plan to address gaps and

support professionalism of access personnel through formal training and certification standards

– Establish criteria to measure the performance of institutions in meeting their obligations under the Act

• Institutional level– Allocate adequate resources– Review processing methods to improve efficiency and timeliness– Improve tracking and reporting mechanisms

• Impact of other policies• Civil society / Academics

Bringing Canada’s Access to Information Régime Into the 21st Century

Looking to the FurtureStrengthening the Compliance Model

• Coverage• Scope of exemptions and exclusions

– Cabinet confidences– Injury based with public interest override

• Information Commissioner’s mandate– Order-making powers– Public education and research– Access impact assessments

• Incentives to provide timely disclosure• Parliamentary Oversight