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ETHI Committee Report

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Mr. Paul Szabo, M.P.
Chair of the Committee
Standing Committee on Access to Information,
Privacy and Ethics
House of Commons
Ottawa, ON K1A 0A6

Dear Mr. Szabo:

The Government welcomes the opportunity to respond to the Eleventh Report of the Standing Committee on Access to Information, Privacy and Ethics entitled The Access to Information Act: First Steps Towards Renewal, released on June 18, 2009.

The Government is deeply committed to increasing openness and transparency and to upholding the principles of the Access to Information Act (ATIA). In 2006, the Government fulfilled its promise and passed the Federal Accountability Act (FedAA) which, among numerous other reforms, made important improvements to the ATIA. These include greatly expanding the coverage of the ATIA so that it now includes several Agents of Parliament (including the Information and Privacy Commissioners), and all federal Crown corporations and their wholly-owned subsidiaries and the Canadian Wheat Board. The FedAA further strengthened the ATIA by providing a duty for institutions to assist requesters without regard to their identity, and clarifying the time limit for making a complaint under the ATIA.

In addition to making the most significant amendments to the ATIA since it came into force in 1983, the Government tabled in 2006 for consideration by your Committee reform recommendations in the form of legislative proposals and a discussion paper. This was in response to a large package of proposed amendments introduced by then Information Commissioner, Mr. John Reid. The Government’s discussion paper raised issues for consideration in relation to Mr. Reid's proposals, and encouraged your Committee to consider these and to consult widely with interested stakeholders and affected government institutions.

Last spring, the former Information Commissioner, Mr. Robert Marleau, tabled with your Committee twelve proposals for immediate reform of the ATIA. Mr. Marleau’s proposals take up many of Commissioner Reid’s recommended amendments.

Although the proposals focus on three general areas, their nature and potential impact would nevertheless require extensive consultations with stakeholders.

In more detail, certain of the recommendations would involve expanding the coverage of the ATIA to include, for example, administrative records of Parliament and the judiciary. There are challenges in implementing an extension of scope to include the administrative records of Parliament and the judiciary, relating to the need to respect and protect Parliamentary privilege and judicial independence.

Other recommendations would involve increasing the powers and mandate of the Information Commissioner including, for example, reviewing legislative proposals, conducting research and public education, and making decisions regarding requests for time extensions beyond 60 days. These proposed reforms would create a shift in the nature of the Information Commissioner’s office from an Ombudsman model towards a quasi-judicial model, which would not be consistent with other Agents of Parliament, such as the Chief Electoral Officer, the Privacy Commissioner and the Commissioner of Official Languages.

Still other recommendations would involve increased oversight and procedural and redress reforms including, for example, requiring a Parliamentary review of the ATIA every five years, and allowing requesters direct recourse to the Federal Court if access is refused. If these recommendations were implemented, they would increase the caseload burden on the Federal Court and would likely lead to a two-tiered system that favours certain requesters over others.

The Access to Information Act is a strong piece of legislation. It is crucial that careful consideration be given to the impact changes to the legislation may have on the operations of the ATI program. Legislative amendments must be examined in the context of administrative alternatives, such as enhanced guidance and training that can be equally effective to realize continued improvements. In this vein, Treasury Board Secretariat initiated a comprehensive review of policies and guidelines related to access to information with a view to clarify accountabilities and responsibilities of those involved in the access to information process. This resulted in a new Policy on Access to Information.

We look forward to working with you and the members of the Committee in further improving the access to information program.

Yours truly,

The Honourable Rob Nicholson
Minister of Justice and Attorney
General of Canada

c.c.: The Honourable Vic Toews, President of the Treasury Board