I would like to thank the committee members for inviting me to speak this morning as part of the committee's study of the Access to Information Act.
I have closely followed your work, I have reviewed the testimony of the various witnesses, and I have read the submissions you have received during your study. In a short amount of time, you have gathered a significant amount of information that will guide your reflections.
I am also mindful of the fact that the government has announced recently a two-phase approach for improving the access to information regime. The first phase would seek to introduce a bill to Parliament consistent with the mandate letter of the President of Treasury Board with a few minor additions. The government is currently consulting Canadians on a number of proposals in relation to the first phase. The second phase would involve a more comprehensive review of the act, set to start in 2018, with legislative reviews every five years.
Mr. Chair, I understand the government's desire to deliver quickly on its specific promises. I also understand that, if Parliament decided to pass access to information legislation with an order-making model, a specific period of time must be set aside for the implementation of this regime. However, I must say that I am disappointed with this two-phased approach. Our Access to Information Act is clearly outdated and severely outranked nationally and internationally. It fails to strike the right balance between the public's right to know and the government's need to protect information.
The implementation of the recommendations in my special report would recalibrate this essential balance. They would bring Canada to the forefront of leaders in access to information legislation. The recommendations in my report are anchored on the highest standards and best practices for access to information legislation contained in laws of other jurisdictions, model laws, and guides, as well as in high-level reports on access reform.
However, in order to be of assistance to the committee as it prepares to issue its report on the review of the act, I have identified recommendations that, in my view, should be prioritized. These priorities have been identified for their greatest impact on transparency. I will address these priorities in turn: extended coverage, duty to document, timeliness, maximizing disclosure, order-making model, and mandatory periodic review.
Extending the scope of the act to ministers' offices and institutions that support Parliament and the court is a strong step in the right direction to ensuring greater accountability and transparency.
Ministers and their parliamentary secretaries, ministers of state, and the Prime Minister are public office holders who make decisions that impact Canadians. These decisions also impact how tax dollars are spent. Ministers and their staff need to be accountable in disclosing information relating to the administration of their departments or other responsibilities.
Parliament is also not covered by the act, but the combined budget of the House of Commons, the Senate, and the Library of Parliament was more than $500 million in 2014-15.
It's a similar situation for the courts' administrative support bodies. In 2014-15, the combined budget of the Supreme Court of Canada, the office of the registrar of the Supreme Court of Canada, the courts administration service, the office of the commissioner for federal judicial affairs, and the Canadian Judicial Council was more than $600 million.
In order to ensure the accountability and transparency of these institutions, the act must apply to them. I therefore recommend that the committee prioritize extending the scope of the act to ministers' offices and institutions that support Parliament and the courts.
Access to information relies on good record-keeping and information management practices. Without records, rights under the act are denied. A legislated duty to document, with adequate sanctions for non-compliance, is an essential amendment to protecting the right of access. A legal obligation to document the decision-making process protects access to information rights by creating official records, facilitating better governance, increasing accountability, and ensuring the historical legacy of government decisions.
Without a legislated duty, there is a real risk, and we have seen that in our investigations, that not all information related to the decision-making process is being recorded or appropriately preserved.
My provincial and territorial colleagues and I issued a number of joint resolutions calling upon our respective governments to create a statutory duty to document. I therefore recommend a comprehensive legal duty to document, with appropriate sanctions for non-compliance.
Timely access to information is a pillar of any access to information regime. Timeliness has been a long-standing struggle of our access to information regime. Delays are a frequent subject of complaints by requesters. Investigations of these complaints have revealed a culture of delay across the access to information system.
In chapter 3 of my modernization report, I make several recommendations to reverse a culture of delay that has depleted the right of access. These include limiting time extensions to what is strictly necessary based on a rigorous, logical, and supportable calculation, up to a maximum of 60 days. Longer extensions would require the permission of my office. The recommendations also seek to limit delays stemming from consultations with other institutions, other jurisdictions, and third parties.
Addressing timelines is a win-win-win. Requesters will receive relevant and useful information; institutions will be less burdened to respond to complaints that are time-consuming and constantly competing with processing requests; and, my cohort of investigators can focus their efforts on remedying refusal complaints.
About 40% of my office's workload deals with administrative complaints related to delays. The vast majority of these complaints are well founded. I therefore recommend addressing delays by implementing the series of recommendations found in my report.
The act provides that government information should be available to the public subject to limited and specific exceptions, and that decisions on disclosure should be reviewed independently of government.
However, under the act, many exemptions are not sufficiently limited and specific. As well, the act provides for exclusions, shielding their application from independent review. As a priority, the committee needs to address the exemption for advice and recommendations, the so-called “Mack truck” of exemptions under our Access to Information Act, and the exclusion for cabinet confidences.
By the way, Mr. Chair, there is a Supreme Court of Canada decision that has interpreted a very similar provision in Ontario, such that unless there is a legislative change for this provision, it will not lead to more disclosure unless there is a legislative amendment.
Policy and decision-making is at the heart of government. Although there is a public interest in ensuring the protection of full, free, and frank advice by public officials, there is an equally important public interest in providing citizens with the information they need to be engaged in public policy and decision-making processes. This information is necessary to have a meaningful dialogue with government and to hold government to account for its decision. This is particularly important in 2016, in the context of our open government initiatives.
Under the current exemption for advice and recommendations, information about priorities, policies, and decisions is broadly protected from disclosure. In order to limit its application to protect only the interest that is at stake, the provision of the advice, this exemption must be limited so it applies only where disclosure would result in injury. The scope and duration of this exemption should also be limited. I therefore recommend amending this exemption as a priority, if the government is to give effect to its accountability and transparency agenda.
With regard to cabinet confidences, cabinet is responsible for setting the policies and priorities of the Government of Canada. Ministers must be able to discuss issues within cabinet privately. Therefore, the need to protect the cabinet decision-making or the deliberative process is well established and recognized.
However, at present, cabinet confidences are excluded from the right of access under the act, subject to very limited exceptions. The exclusion that is written in the act is overly broad and goes way beyond what is necessary to actually protect cabinet's deliberative process.
I therefore recommend that the cabinet confidences exclusion be repealed and replaced with a mandatory exemption that is limited to when disclosure would reveal the substance of deliberations of cabinet. This would allow the commissioner to exercise an independent review function.
A public interest override allows for the competing interest of the public's right to know to be balanced against the interest the exemption protects. Considering the public's interest should be an automatic reflex when determining if non-disclosure is appropriate and necessary. I recommend in the report a list of factors to consider in weighing the public interest in disclosure. These include the government's commitments on open government, as well as environmental, health, and public safety implications or human rights violations. This list is non-exhaustive and actually could include other important factors, such as the rights of indigenous people.
It is paramount that this omission in the act be corrected to ensure the proper balance between competing interests. I therefore recommend as a priority that a public interest override be included in the act.
I have made a number of recommendations to strengthen oversight of the right of access. In my view, the most effective model is the order-making model, with orders subject to judicial review by the Federal Court. This model would include mediation, strong investigative powers, the discretion to adjudicate, and certification of orders as if they were orders of the Federal Court. The benefits of this model are clear and indisputable.
Orders from the commissioner would create a body of precedents that increases over time. Requesters and institutions would then have clear direction as to the commissioner's position on institutions' obligations under the act. The body of precedents would also reduce the likelihood that the commissioner would have to review issues that have already been adjudicated. It gives a clear incentive to institutions to apply exemptions only where there is sufficient evidence to support non-disclosure and then put this evidence before the adjudicator, as judicial review before the court is based only on the record that was before the adjudicator. The grounds on which the order can be set aside are limited, and the institution cannot introduce new evidence or rely on new exemptions.
This, Mr. Chair, is actually a situation that is currently making its way before the Federal Court in two cases where the parties are adducing new evidence of exemptions just as the matters are proceeding to court. This is not unusual in the current system.
An order-making model with a judicial review process would actually avoid these situations, because in that context it is the adjudicator's decision, not the institution's, that is under review before the court. It avoids the redundancy of having two levels of review of the same decision and could result in more timely access to information. The burden to seek a judicial review before the court is on the institution—not on the requesters, as it is in the current system—if the institution wishes to oppose a disclosure ordered by an adjudicator. It provides finality for requesters because orders of the adjudicator are binding unless reviewed by the court. In short, this model improves timeliness, instills discipline, and creates predictability.
The oversight model employed in the act needs to be complemented by additional powers to maximize its effectiveness. These powers include the ability to audit institutions' compliance with the act; to initiate investigations; to carry out education activities; to conduct or fund research; and, to advise on legislation, programs, and activities that impact on access to information rights. These powers are very similar to those included in the B.C. legislation, for instance, right here in Canada.
I therefore recommend a comprehensive order-making model, which would place Canada at the forefront of leaders in access to information legislation.
Should Parliament decide to follow a two-step approach to reform the Access to Information Act, the first-phase legislation must include a mandatory review in 2018 and every five years thereafter. This will ensure that a comprehensive review does in fact occur in 2018.
Mr. Chair, I wish to reiterate that the act has fallen behind modern standards. 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.
Over the last 30 years and even longer, there have been extensive studies, debates, consultations, and reviews conducted with regard to this legislation. What is required now are policy decisions to reform the act.
We must make policy decisions at this point. The studies have been extremely numerous. The issues have been put forward and debated many, many, many times over the last 30 years.
Mr. Chair, as I have stated before, the act does not strike the right balance between the public's right to know and the government's need to protect information. Now is the time to take bold action to ensure that Canadians' access rights are protected.
I am looking forward to answering the committee members' questions.