Modernizing Canada s Access to Information Law Submission to the Information Commissioner by Newspapers Canada John Hinds, Chief Executive Officer Newspapers Canada January 31, 2013
2 Introduction Newspapers Canada appreciates the opportunity to provide this submission as part of the current review of Canada s Access to Information legislation. Newspapers Canada is a joint initiative of the Canadian Newspaper Association and the Canadian Community Newspapers Association, two separate organizations that have partnered to create one strong industry voice for newspapers in Canada. Combined, we represent over 830 daily, weekly, and community newspapers in every province and territory in Canada. Over the years, access to information has become an important tool for journalists, helping us to tell the stories that Canadians want to hear. This, in turn, helps ensure government accountability and the strength of our democratic processes. That is why the newspaper industry through the Canadian Newspapers Association and the Canadian Community Newspaper Association, working together through Newspapers Canada view access to information as one of its top issues. It is for this reason that Newspapers Canada began conducting annual audits of how well these systems were working across the country, including the performance of the federal government. The annual audit is the largest and most comprehensive survey of its kind in Canada and is, in fact, the only live test of the freedom of information systems at work in this country. As such, it provides the public the opportunity to see the degree to which our governments are in compliance with their own access legislation, as well as facilitating comparisons among jurisdictions. Our audit reports continue to show that governments have been inconsistent at delivering on their requirements for ensuring the right of access. But, just as importantly, the audits have helped identify important policy issues and the need for reform. The Right to Know /3
3 This review is timely, not only because this year marks the 30th anniversary of Canada s groundbreaking access to information legislation, but because of recent evidence that our governments commitment to access may be weakening. Canada s access to information regime is falling behind. When the federal government passed the Access to Information Act (ATIA) in 1983, we were a world leader in access. However, in the years since, successive governments have not taken action to modernize the Act, leaving the legislation woefully outdated and seeing our own leadership surpassed by others. A recent survey of access legislation around the world saw once- leading Canada slip in the rankings to just 55th place sandwiched between Malta and Thailand. Newspapers Canada s annual Freedom of Information audit found that 50% of access requests to the government were fulfilled within 30 days (earning it a grade of D), and less than half of requested documents were released in full. Further, last year saw the governments in Newfoundland & Labrador, as well as Yukon, introduce legislation that further diluted the right of access to information for its people. Any legislative approach to access to information must begin from a very important foundational principle: that access to information about our government is a right. The right to know - - that is the right to know what our governments are doing and how they go about doing it - - is a vital part of our democracy and a foundational principle of good government. Consequently, legislation must operate fundamentally on a presumption of access and then, from that starting point, go on to define reasonable processes to help facilitate the public s right to the information they would like to see. That is to say, in our view, access to information legislation should be written from the perspective that its very purpose is to facilitate the public s access to information and communicate to information custodians what is expected of them in fulfilling that purpose. As a general principle, all government records should be subject to disclosure The starting principle must be that the right of access should apply to all records held by government and its agencies, except for where there is a clear public policy (such as national security) or a privacy rationale for withholding that information. In that regard, access restrictions should be determined by a document s content, rather than the department or agency holding the record. /4
4 All federal entities should be subject to ATIA on principle. The basic logic behind the Act is that taxpayers deserve to know how their taxes are being spent and how policies that affect them are being decided. This should apply equally to Crown corporations. Some may argue that these corporations deserve to be exempt from ATIA because being covered by the Act would put them at a disadvantage, as their practices would be more open than their competitors. However, Crown corporations should recognize that being publicly funded means being publicly accountable just as publicly traded corporations are accountable to shareholders, and subject to certain disclosure regulations. Historically, Cabinet documents have been considered especially privileged and thusly off- limits to access requests. In our view, the broad brush of secrecy across all Cabinet documents is not justifiable. The Act should apply to all records that inform Cabinet decisions, unless they happen to fall under the exceptions proscribed above. Cabinet occupies a unique place in Canadian politics, operating as the executive branch of government. While there may be an argument for providing some limitations on access while matters are in deliberation, we question the current provisions that restrict access to a wide variety of records on the basis of Cabinet confidence. The notion, raised by Newfoundland and Labrador when it amended its ATI legislation last year, that access to Cabinet documents could create a chill over the deliberations of ministers says more about the state of Canadians politics than it does about the right of access to information. Similar to the appeal process described elsewhere in this submission, the Office of the Information Commissioner should be able to review Cabinet documents if an applicant s request for records has been denied. In short, the Commissioner should be given unfettered access to all government records, to act as the arbiter of access and the principal enforcer of the Act. Exemptions and Restrictions on the Right of Access We recognize, of course, that there may be legitimate reasons for limiting access for some types of information and exemptions should be permitted. However, in this regard, care should be taken to ensure that a policy on exemptions is informed by a justifiable rationale, subject to review by the Commissioner. /5
5 There are several circumstances in which access should be limited. The two most important ones are: Documents whose release would endanger the national security; and Documents which contain sensitive information about individuals and whose release would put such individuals at a risk of harm or injury. While we realize that these might appear vague, we think it would be unwise to define exceptions any more strictly. There should always be room for discretion. We find it difficult to include prejudice as an unacceptable risk of disclosure even more than injury, harm or a threat to national safety, prejudice is difficult to define, and could more easily be abused by entities seeking to withhold disclosure. However there must be a rigorous appeals process when access is denied on these grounds, or for any other reason. The office of the Information Commissioner must be allowed not only to review documents which a government entity claims are exempt from disclosure, but be empowered to compel the entity to release said documents. Neither the Information Commissioner nor members of the public - - should have to take the government to court to gain access to documents for their own review or to have them released to the public. These powers should be built into the Act. The onus should be on the government to prove that the release of a document would endanger a person or the national security. Given the principle that the Act should apply to all documents from all agencies, departments and Crown corporations, it should not be up to the applicant to prove that a document s contents are in the public interest. Everything should be considered in the public interest except where there is a justifiable rationale for withholding the information. Policing the Right of Access A requester, who is denied access to a record based on a claim that it is exempt, or who otherwise feels that their request is not being acted on appropriately should be able to avail themselves of a rigorous system defined in the legislation in order to address complaints or file an appeal. Further, it should be the Commissioner who should have the proper authority to enforce the Act, including the power to order the release of information held by a government information custodian. /6
6 Currently, there is insufficient oversight and authority by the Commissioner to ensure that the Act is enforced when government does not respond positively to a legitimate request. The fact that the only recourse for the public would be to the courts when faced with a denial by government is simply not an appropriate approach and, in our view, an alternative approach to resolving a dispute - - before reaching the courts is necessary. Specifically, the Commissioner should have order- making power, to compel the release of information where that release would be consistent with the provisions of the legislation. It should only be after an appeal to the Commissioner, that a review by a court should be considered. Finally, we also question the relationship between access to information coordinators and their respective departments, agencies or Crown corporations. As people operating within their respective organizations, who have risen through their ranks and have established working relationships with colleagues, superiors and subordinates, they are in a difficult position to operate as an independent challenge agent and as an advocate for access. We believe that consideration should be given to the establishment of a cadre of information coordinators, working either on behalf of a central agency or even the office of the Commissioner itself who would not be subject to the kind of internal pressures to simply go- along to get- along. A similar analog might be that of the Department of Justice s army of lawyers who are co- located in government departments, but do not answer directly to those departments. Financial barriers to access should be removed. Financial barriers can be thrown up that serve to limit reasonable access to government documents and factual information. Firstly, we do not support a requirement that an application fee should accompany an access request. Such a fee, even a nominal fee, represents an unjustifiable barrier for those who legitimately want to access information that they are entitled to and for which the government has not already provided sufficient public access (e.g. through proactive disclosure on a website). If application fees were to remain, they should remain low and people should be able to pay them online (as well as make the application itself on- line). Secondly, we are concerned about the fees being charged for providing requested records. While the average amount charged per request may be relatively modest, there have been instances in which government departments have attempted to charge exorbitant amounts for the release of lengthy records. While we can appreciate that the government may have an interest in trying to recover some of the costs associated with providing documentation in /7
7 some cases, we believe that better care can be taken to ensure that these fees are reasonable and that government is making optimal use of technology in providing this information. Specifically, we believe that it should be incumbent upon government to look for the least costly mechanism for providing information to a requester, including the provision of electronic versions of documents. Who should enjoy the right of access? We can think of no solid rationale for limiting the right of access to Canadian government information on the basis of citizenship or where a person might be physically located. Recognizing the fact that increased transparency supports more effective, more accountable government, we believe that all Canadians would ultimately benefit from greater scrutiny of government information, regardless of where that might occur. With global access to online editions of newspapers, countless free blogging websites and social media networks, most of which are available in your pocket, there are no barriers to the global distribution of information. Any document released under ATIA cannot be expected to stay in the hands of the person who made the request (nor should it), and anyone who argues otherwise ignores the technological realities of the 21st century. Borders do not exist on the web. In fact, the government should enable and encourage widespread access by posting all documents released under the act on government entities websites, or by pre- emptively posting documents under its Open Government initiative. This would mitigate the bureaucratic nightmare that citizens and journalists often have to endure when filing access requests, cut down on the amount of time that public servants have to spend on complying with requests, and perhaps most important it would demonstrate a clear commitment to the first principle: the default position for access should be on. The Role of the Office of the Information Commissioner It goes without saying that access to information is a crucial component of Canadian democracy. It allows Canadians to hold their public officials elected or otherwise to account, to track how their tax dollars are being spent, and the basis on which government decisions get made. As the Office of the Information Commissioner notes, access to information has even been granted quasi- constitutional status, recognizing that the right to information is a fundamental one. /8
8 In our view, the Information Commissioner s role should be expanded to position that office more clearly as the arbiter on access issues, including the power to order to release of documents. Further, as we described elsewhere, we believe that consideration should be given to severing the relationship between access to information coordinators and the departments or agencies where they happen to work. In this regard, we have proposed the development of a cadre of access coordinators who report to the Information Commissioner or, as an alternative, to the Attorney General. Those who are required to rule on access requests should not be subject to undue pressure from colleagues or supervisors within the organizations they work. We believe that the Information Commissioner also has a role in educating Canadians on their right to know, as well as to lead training and other strategies necessary to inculcate a culture of access within the public service itself. Conclusion People in our line of work are fond of saying, As journalism goes, so goes democracy. The same could be said of the health of a government s ATI regime: as Access goes, so goes democracy. Countless public- interest news stories have been broken, and continue to be broken, using ATI requests. But despite journalists extensive use of the Act it is far outweighed by citizens exercise of the right to information. In 2010-11, there were three public requests for every media request. All Canadians, not just journalists, have an interest in ensuring the right of access is preserved and strengthened. In that regard, it is our hope that this review will result in positive recommendations that will, in turn, be adopted by Parliament and our government. As we celebrate the 30th anniversary of Canada s once groundbreaking access to information law, it is time for this country to take the lead once more.