Democracy, the Right to Information and the Role of Legislation Denis C. Kratchanov General Counsel, Department of Justice At the Right to Know Legal Panel September 30, 2009

Basic assumptions underlying the Access to Information Act that are worth repeating In a democracy the Government is the custodian of the public’s information The public should have access to as much of its own information as possible and as quickly as possible The purpose or motive of the requester is irrelevant and cannot be taken into account The legal right to obtain information is subject to countervailing interests set out in the legislation

Government challenges Meeting deadlines Disclosing as much as possible Applying exemptions and exclusions correctly

Time required to complete 357,171 requests between (Treasury Board Secretariat data) 0 to 30 days:59.7% 31 to 60 days:17.1% 61 days or over:21.2% Meeting deadlines

Days 1-2: Request is received and areas of responsibility that may hold relevant documents are identified Days 3-7: Relevant documents are identified and sent to the ATIP office with recommendations/comments on their nature Days 8-15: ATIP office reviews the documents and determines whether exemptions or exclusions are applicable, in consultation with the employees of the program involved; extensions are requested as needed Days 16-20: The head of the institution makes a decision and informs the requester Deadlines: 30 calendar days = 20 business days

Even where an ATIP office operates with all the resources it needs, the following factors make it difficult, and sometimes impossible, to comply with the initial deadline of 30 calendar days: Relevant information located at various sites Notice sent to third party (s. 20) Consultation with other governments (s. 13) Consultation with individuals (s. 19) Consultation with other institutions (e.g., legal advice) Request involves too many documents Factors that impact deadlines

Proactive disclosure of relevant information (no need for an ATIA request): Travel and hospitality expenses of Ministers, their staff, Deputy Ministers and Assistant Deputy Ministers Contracts over $10,000 Reclassification of public service positions Grants and contributions over $25,000 Government advertising expenditures Internal audit reports Disclosing as much as possible

Exemptions and exclusions are inherent to the right of access. The application of the ATIA is not a scientific process that leads to a predetermined answer. The context in which information exists and the divergent interests that must often be balanced make it a process that is more art than science. The law and the Guidelines adopted by the Treasury Board give some structure to that process, but at the end of the day, an assessment of the facts must be done. In applying exemptions and exclusions, two reasonable persons, even two competent ATIP officers, may come to a different conclusion. This is why there are independent review mechanisms built into the legislation. Applying exemptions and exclusions correctly

Requests received: 364,552 Requests completed: 357,171 All information disclosed: 31% Information informally disclosed: 3% Some information disclosed: 41% No information disclosed: 3% Not processed: 20% (transferred, abandoned or information does not exist) Applying exemptions and exclusions (TBS data)

Two tax-agency workers diverted refunds to their accounts (Globe and Mail, September 17, 2009); Review of rail security at borders cites major gaps (The Canadian Press, September 14, 2009) Transport Canada 'fictitiously' expensing millions Officials billed $10.7-million in expenses since 2004 to stalled Mackenzie pipeline (Globe and Mail, September 14, 2009); Feds throw body check: Will airline passengers be asked to show more than tickets? (Ottawa Sun, September 13, 2009) Airline passengers can keep shoes on (The Canadian Press, September 8, 2009) No thaw in spat over symbol of Arctic sovereignty A Canadian-Danish resolution on Hans Island could be 'a way of getting the ball rolling' on other northern ownership disputes (Globe and Mail, September 17, 2009); Border guards using guns, batons, pepper spray more often (The Canadian Press, September 7, 2009) Les journalistes dépêchés en Afghanistan surveillés de près (The Canadian Press, September 14, 2009) Documents chez Julie Couillard: le gouvernement minimisait leur importance (The Canadian Press, September 3, 2009) Some newspaper stories published this month based on documents obtained through the Act