Canada's information czar launches review of federal law on 30th anniversary

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Suzanne Legault, Information Commissioner of Canada, speaks in Ottawa on May 31, 2012. A federal watchdog is launching a major review of Canada's Access to Information Act, but at least one critic says she's overstepping her mandate. THE CANADIAN PRESS/Sean Kilpatrick

OTTAWA - A federal watchdog is launching a major review of Canada's Access to Information Act, but at least one critic says she's overstepping her mandate.

Information commissioner Suzanne Legault says her review will look at lessons learned in five other countries, as well as in the provinces, to propose updates for a law born long before the age of the Internet.

"Canada has a real opportunity, actually, to re-establish itself as a (global) leader," she said Friday after announcing the plan.

"It's time to have great expectations for Canadian transparency."

Legault will examine parallel laws and information regimes in Britain, the United States, Mexico, New Zealand and Australia to see what innovations abroad might be imported into Canada.

No travel is contemplated, but she will consult with information ombudsmen in the five countries, release a discussion paper in September, then consult with Canadians to have concrete proposals for Parliament in the spring.

The Access to Information Act has had a few minor amendments over the years, but has never been overhauled since it was given royal assent on July 7, 1982.

Last month, a Halifax-based group ranked Canada 51st in the world on a list of freedom-of-information rankings, behind Angola, Colombia and Niger. Users have complained that Canada's system is rife with long delays, excessive redactions and few penalties for bad performance.

But an expert in Canada's information law says Legault should stick to her legislated responsibility — resolving complaints from users — instead of using scarce public resources to press for changes.

"It's not the job of the information commissioner to change the law," said Michel Drapeau, an Ottawa lawyer, noting that the Act assigns the commissioner an ombudsman's role only.

Drapeau says he's concerned that an ombudsman who lobbies for change can no longer be seen as neutrally interpreting the law, undermining a primary responsibility.

Instead, he says the auditor general of Canada is the appropriate official to monitor how effectively departments are carrying out their duties under the legislation, and whether change is needed.

And parliamentarians are best suited to amend the law, said Drapeau, co-author of a standard textbook on freedom of information. "In the final analysis, it's a political exercise."

John Reid, a previous information commissioner, issued a package of detailed proposals to revise the Act, many of which were adopted by the Conservative party in its 2006 election campaign platform.

After winning a minority, however, the Harper government abandoned most of its freedom-of-information pledges, though it did expand the number of institutions covered by the law to include Canada Post, the CBC, Via Rail and others.

Last year, a Supreme Court of Canada decision declared much of the paper inside a minister's or prime minister's office off-limits, dealing a blow to proponents of openness.

Canada has since been regarded as an international laggard as more countries adopt tough, modern laws crafted for a world of emails and websites.

Legault says her counterparts in other countries view Canada's laws as "antiquated," though they applaud the fact that her recommendations to offending departments are usually followed.

The biggest problems with the current system are the long delays in responding to requests, with no effective deterrence, she says.

Legault says Mexico may offer a better model, where the law declares a document to be in the public domain if a department does not abide by legislated deadlines.

"Something like that really shifts the onus on the institutions," she said.

Drapeau said holding deputy ministers directly accountable for a department's performance under the Access to Information Act is the quickest, simplest fix to the current system.

Under the law, any person in Canada can request documents and other material under the control of a federal department or agency for a $5 application fee, plus any additional charges for photocopies or processing.