Canada’s Access to Information Act Measuring Up? Panel 3: Select Country Cases April 28, :15 Americas Regional Conference on the Right of Access to Information Lima, Peru

Freedom of Information in Canada All states should enact legislaton to give effect to the right of access to information. (Atlanta Declaration, Key Principle #2)

25 Years Later How does Canada measure up against the Atlanta Declaration and Plan of Action For the Advancement of The Right of Access to Information ???

Right of Access to Information Access to information is a fundamental human right. (Atlanta Declaration, Key Principle #1)  Access to information is recognized as a quasi- constitutional right by the Supreme Court of Canada. “The purpose of access to information legislation is to facilitate democracy by helping to ensure that citizens have the information required to participate meaningfully in the democratic process and that politicians and bureaucrats remain accountable to the citizenry.”  Right of access is limited to Canadians and people present in Canada.

Presumption of Openness Access to information is the rule; secrecy is the exception. (Atlanta Declaration, Key Principle #4a)  Access to Information Act is based on a presumption in favour of disclosing government-held information.  It provides “a right of access to information in records under the control of a government institution.”  It is “not intended to limit in any way access to the type of government information that is normally available to the general public.”

Coverage of the Access to Information Act The right of access to information should apply to all branches of government (including the executive, judicial and legislative bodies, as well as autonomous organs) at all levels... (Atlanta Declaration, Key Principle #4b)  Applies to  Departments and agencies  Crown corporations and Officers of Parliament recently added by the Federal Accountability Act  Does not apply to  Parliament  Ministers’ Offices  Courts

Exceptions to Access Exemptions to access to information should be narrowly drawn, specified in law, and limited only to those permitted by international law. All exemptions should be subject to a public interest override, which mandates release of otherwise exempt documents when the public benefit of release outweighs the potential public harm. (Atlanta Declaration, Key Principle #4g)  “Necessary exceptions to the right of access should be limited and specific.”  Injury tests broadly interpreted, notably “operations of government”  Public interest overrides limited to personal information and third party information  Cabinet documents explicitly “excluded” from the purview of the Act

Exceptions to Access

Information Commissioner of Canada The requester should be guaranteed a right to appeal any decision, any failure to provide information, or any other infringement of the right of access to information to an independent authority with the power to make binding and enforceable decisions, preferably an intermediary body such as an Information Commission(er) or Specialist Ombudsman in the first instance with a further right of appeal to a court of law. (Atlanta Declaration, Key Principle #4k) Officer of Parliament –Appointment subject to Parliamentary scrutiny –Funding for Office – Potential for conflict of interest Ombudsman –Protects the rights of requesters under the Access to Information Act –Advocates the benefits of open government Complaints resolution –Strong investigative powers, including subpoenas and hearings –No order-making powers – orders issued pursuant to Judicial Review –Resolves complaints through mediation and suasion Compliance –Monitors the performance of federal institutions, e.g. Annual and Special Reports to Parliament –Communicates with Canadians, Parliament and the media Mandate does not include public education or research

Order-Making Powers in Canadian Jurisdictions

Compliance Continuum

State of Access to Information in Canada Access to Information Act has not changed significantly over the years. Biggest change – Information Technology Network Federalism Public-private sector partnerships are the norm Global, knowledge-based service economy Expectations of Canadians –Culture of service – most government information should be readily available and free –New generation of users born in electronic age

State of Access to Information Canada Access to Information Act has not changed significantly over the years. Biggest change – Information Technology Network Federalism Public-private sector partnerships are the norm Global, knowledge-based service economy Expectations of Canadians –Culture of service – most government information should be readily available and free –New generation of users born in electronic age

Assessing Performance Report card process to assess the performance of institutions in responding to requests –6 out of 10 performed below average –30 day timeline becoming the exception rather than the norm –Greater use of time extensions for longer periods of time Systemic issues –Deficiencies in information management Exacerbated by the rapid pace of technology resulting in more time required to retrieve records and missing records Growth in the volume of pages reviewed and processed –Increasing number of consultations between institutions –Insufficient qualified personnel –Lack of leadership

Completion Times

Improving Performance Leadership –Properly assess, resource and improve information management –Develop an integrated human resource plan to address gaps and support professionalism of access personnel through formal training and certification standards –Establish criteria to measure the performance of institutions in meeting their obligations under the Act Institutional level –Allocate adequate resources –Review processing methods to improve efficiency and timeliness –Improve tracking and reporting mechanisms Impact of other policies Civil society / Academics

Bringing Canada’s Access to Information Régime Into the 21 st Century

Looking to the Furture Strengthening the Compliance Model Coverage Scope of exemptions and exclusions –Cabinet confidences –Injury based with public interest override Information Commissioner’s mandate –Order-making powers –Public education and research –Access impact assessments Incentives to provide timely disclosure Parliamentary Oversight