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Accessing Democracy: The Critical Relationship between Academics and the Access to Information Act

Published online by Cambridge University Press:  02 January 2013

Vincent Kazmierski
Vincent Kazmierski
Affiliation:
Department of Law, Carleton University, 1125 Colonel By Drive, Ottawa, ON K1S 5B6, Canada, [email protected]
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Extract

Parliament recognized the fundamental importance of protecting access to government information when it enacted the federal Access to Information Act. When the Act came into force on Canada Day 1983, Canada was just one of a handful of countries to have legislative protection of access to government information. Now, 27 years later, over 80 countries across the globe have enacted some form of access to information legislation.

Although the world has followed Canada's lead in recognizing the importance of protecting access to government information, Canada has “fallen behind” (to borrow the descriptor used by journalist and author Stanley Tromp) and may even be “backsliding” (in the words of Laura Neuman of the Carter Center). What has gone wrong with the federal access regime? Why should legal studies scholars care? I address these questions in this article. I start by outlining the symbiotic role between academics and access to government information. I then identify three key factors that have contributed to the decline of the federal access regime: administrative resistance, legislative degeneration, and political indifference. Finally, I close by briefly discussing three ways in which scholars can continue to work to protect and promote access to information in Canada.

Academics and Access

Academics took the lead in advocating for access to government information in the 1960s and 1970s in Canada. One of the earliest advocates was Donald C. Rowat, a professor of Political Science at Carleton University. In a 1965 article entitled “How Much Administrative Secrecy?”, he summarized the key arguments in favour of protecting access to government information, writing

Parliament and the public cannot hope to call the government to account without an adequate knowledge of what is going on; nor can they hope to participate in the decision-making process and contribute their talents to the formation of policy and legislation if that process is hidden from view.

Type
Problems in Accessing Information: A Collection of Essays
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 26 , Issue 3 , December 2011 , pp. 613 - 622
Copyright
Copyright © Canadian Law and Society Association 2011

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References

1 RSC 1985, c A-I [Access Act]. This paper will focus on the federal access regime.

2 This is a commonly cited estimate of the number of countries that have access legislation in place, although the total is now close to 90. See, e.g., Hazell, Robert and Worthy, Ben, “Assessing the Performance of Freedom of Information” Government Information Quarterly 27 (2010), 352CrossRefGoogle Scholar.

3 Tromp, Stanley L., Fallen Behind: Canada's Access to Information Act in the World Context (September 2008), Canadian FOI Resource Web site http://www3.telus.net/index100/foiGoogle Scholar; Laura Neuman, “ATI Without Frontiers” (Presentation to International Perspectives on Access to Information Panel during Right to Know Week Events, 1 October 2010) [unpublished].

4 Rowat, Donald C., “How Much Administrative Secrecy?” Canadian Journal of Economics and Political Science 31 (1965), 480CrossRefGoogle Scholar.

5 Rankin, T. Murray, Freedom of Information in Canada: Will the Doors Stay Shut? (Ottawa: Canadian Bar Association, 1977), 154–55Google Scholar. Other early academic discussions of access legislation include Rowat, Donald C., ed., The Making of the Federal Access Act: A Case Study of Policy-Making in Canada (Ottawa: Carleton University, Department of Political Science, 1985)Google Scholar; McCamus, John D., ed., Freedom of Information: Canadian Perspectives (Toronto: Butterworths, 1981)Google Scholar; Rankin, T. Murray, “The New Access to Information and Privacy Act: A Critical Annotation,” Ottawa Law Review 15 (1983), 1Google Scholar; Onyshko, Tom, “The Federal Court and the Access to Information Act,” Manitoba Law Journal 22 (1993), 73Google Scholar.

6 Roberts, Alasdair, “Structural Pluralism and the Right to Information,” UTLJ 51 (2001), 243 at 263CrossRefGoogle Scholar. For more recent discussions of the importance of access to government information see Tardi, Gregory, The Law of Democratic Governing: Principles, vol. 1 (Toronto: Thomson Carswell, 2004), 38Google Scholar; Forcese, Craig, “Clouding Accountability: Canada's Government Secrecy and National Security Law ‘Complex,’” Ottawa Law Review 36 (2004–2005), 49, paras. 30–31Google Scholar; Kazmierski, Vincent, “Something to Talk About: Is There a Charter Right to Access Government Information?” Dalhousie Law Journal 31 (2008), 351Google Scholar.

7 I make this distinction without pejorative intent, particularly since my own work to date on this issue admittedly falls into this first category.

8 There are, of course, many more barriers. In particular, Alasdair Roberts has noted several other ways in which the government has undermined access to information, including under-funding of the Office of the Information Commissioner, outsourcing/privatization of the delivery of public services, and litigation resisting disclosure of information. See Roberts, Alasdair, “New Strategies for Enforcement of the Access to Information Act,” Queen's Law Journal 27 (2002), 647Google Scholar; Roberts, Alasdair, “Retrenchment and Freedom of Information: Recent Experience under Federal, Ontario and British Columbia Law,” Canadian Public Administration 42 (1999), 422CrossRefGoogle Scholar; Roberts, Alasdair, “Administrative Discretion and the Access to Information Act: An ‘Internal Law‘ on Open Government?” Canadian Public Administration 45 (2002), 175CrossRefGoogle Scholar. Murray Rankin, now working as a lawyer, continues to produce studies of the access regime, such as Murray Rankin, “The Access to Information Act 25 Years Later: Toward a New Generation of Access Rights in Canada,” http://www.oic-ci.gc.ca/eng/pa-ap_acc-atia-ref.aspx.

9 Information Commissioner of Canada, Annual Report 2003 – 2004 (Ottawa: Minister of Public Works and Government Services Canada, 2004)Google Scholar.

10 Ibid., 5.

11 Ibid.

12 Ibid., 6.

13 Ibid., 3.

14 [1994] 4 FC 245 at 255. See also 3430901 Canada Inc v. Canada (Minister of Industry), 2001 FCA 254, [2002] 1 FC 421 at para. 30; Canada (Information Commissioner) v. Canada (Commissioner of the RCMP) 2003 SCC 8, [2003] 1 SCR 66 at para. 17.

15 [2001] 3 FC 514 (TD).

16 Ibid, at para 45.

17 Ms Legault has since been appointed as Information Commissioner.

18 Information Commissioner of Canada, Out of Time: Systemic Issues Affecting Access to Information in Canada (Ottawa: Minister of Public Works and Government Services Canada, 2010), http://www.oic-ci.gc.ca/eng/rp-pr_spe-rep_rap-spe_rep-car_fic-ren_2008-2009.aspx, 3Google Scholar.

19 Ibid., 2.

20 Ibid.

21 Other weaknesses that have been identified by Information Commissioners, parliamentary committees and scholars include the exclusion of cabinet confidences from the ambit of the Act, the passive, complaints-driven orientation of the Act, and the lack of a public-interest override to exemptions within the Act.

22 Access Act, s. 9.

23 Ibid., s. 37.

24 Information Commissioner of Canada, Proposed Changes to the Access to Information Act: Presentation to the Committee on Access to Information, Privacy And Ethics (Ottawa: Information Commissioner of Canada, 2005), http://www.oic-ci.gc.ca/eng/pa-ap_acc-atia-ref.aspxGoogle Scholar.

25 Commission of Inquiry into the Sponsorship Program and Advertising Activities, Restoring Accountability (Ottawa: Minister of Public Works and Government Services, 2006), 183ffGoogle Scholar.

26 Conservative Party of Canada, Stand Up for Canada: Conservative Party of Canada Federal Election Platform 2006, http://www.cbc.ca/canadavotes2006/leadersparties/pdf/conservative_platform20060113.pdf. The platform stated:

A Conservative government will:

• Implement the Information Commissioner's recommendations for reform of the Access to Information Act.

• Give the Information Commissioner the power to order the release of information.

• Expand the coverage of the act to all Crown corporations, Officers of Parliament, foundations, and organizations that spend taxpayers' money or perform public functions.

• Subject the exclusion of Cabinet confidences to review by the Information Commissioner.

• Oblige public officiais to create the records necessary to document their actions and decisions.

• Provide a general public interest override for all exemptions, so that the public interest is put before the secrecy of the government.

• Ensure that all exemptions from the disclosure of government information are justified only on the basis of the harm or injury that would result from disclosure, not blanket exemption rules

• Ensure that the disclosure requirements of the Access to Information Act cannot be circumvented by secrecy provisions in other federal acts, while respecting the confidentiality of national security and the privacy of personal information.

27 See Accountability Act, SC 2006, c. 9, ss. 141–72. For a critique of these reforms see Information Commissioner of Canada, “Remarks to the University of Alberta's 2006 Access and Privacy Conference's Appreciation Dinner—‘The Future of Accountability’— the Federal Government's Accountability Act and Discussion Paper and the Open Government Act” (June 14, 2006), online from the Information Commissioner of Canada, http://www.oic-ci.gc.ca/eng/media_room-speeches-2006-junexx.aspx.

28 Canada, Department of Justice, Strengthening the Access to Information Act: A Discussion of Ideas Intrinsic to the Reform of the Access to Information Act (April 11, 2006), http://www. justice.gc.ca/eng/dept-min/pub/atia-lai/index.htmlGoogle Scholar.

29 Information Commissioner of Canada, “The Future of Accountability.”

30 Information Commissioner of Canada, Strengthening the Access to Information Act to Meet Today's Imperatives (March 4, 2009), http://www.oic-ci.gc.ca/eng/pa-ap-atia_reform_2009-march_2009-strengthening_the_access_to_information_act_to_meet_ todays_imperatives.aspxGoogle Scholar.

31 House of Commons Standing Committee on Access to Information, Privacy and Ethics (Paul Szabo, chair), The “Access to Information Act”: First Steps Towards Renewal, 40th Parl., 2nd Sess., 11th report (June 18, 2009), http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=3999593&Language=E%208&Mode=1&Parl=408&Ses=2.

32 Government Response to Eleventh Report of the Standing Committee on Access to Information, Privacy and Ethics entitled The Access to Information Act: First Steps Towards Renewal, http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId= 4139070&Language=E&Mode=1&Parl=40&Ses=2.