Bold vision needed for access act reform

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This article was published 15/01/2022 (1386 days ago), so information in it may no longer be current.

THE Access to Information Act (ATIA) is an important mechanism for promoting transparency, accountability and trust in government. It is used by parliamentarians, journalists, lobbyists, businesses, non-profits, researchers and regular citizens to obtain information about government actions and inactions.

The effectiveness of the law depends greatly on its detailed provisions, which provide the foundation for promoting and protecting the public’s right to know. However, it also depends on an understanding of, and a commitment to, its principles by both politicians and public servants.

Because the ATIA operates within an overlapping political and administrative environment, there are inherent incentives for secrecy. Cynically, it can be argued that the dynamic of Parliament is mainly about blaming; this leads ministers to use various blame-avoidance tactics to blunt opposition criticism, including withholding information that might be politically damaging.

Public servants recognize this, and they have their own reasons — such as the potential loss of authority and damage to their careers — for protecting sensitive information.

The ATIA must work against these fundamental, powerful forces.

As part of their successful 2015 election campaign, the Trudeau Liberals promised to strengthen the act. At the time, the Harper Conservative government was notorious for political interference in the operation of the act, leading to excessive secrecy and prolonged delays processing ATIA requests.

Once in power, the Liberals launched a review, but the process to strengthen the law has been low-key, slow and cautious. They must fulfil their promise, and there is an identified agenda of necessary reforms.

The first stage of the government’s review process concluded with Bill C-58, which introduced important practical improvements to the ATIA, such as the elimination of fees beyond the initial $5 application fee, a stronger role for the information commissioner, and new requirements for proactive publication of government documents. It also introduced a mandatory review of the law every five years.

In June 2020, the minister responsible for the ATIA (the secretary to the Treasury Board) announced a broader review of the access system, which involved a consultation exercise. An interim report released last December identified multiple themes and concerns, only a few of which can be covered here.

There were calls for more proactive disclosure of information; fewer, less restrictive exemptions from the disclosure principle; more timely release of documents; and additional resources (money, staff and technology) to improve fulfillment of the public’s right to know.

After discussions with the departments identified as least compliant with the ATIA, the information commissioner (an independent officer of Parliament who oversees the law) concluded the right of access was not well understood and given priority, that the pandemic had placed an enormous strain on archaic information systems manned by public servants working remotely, and that recruiting and retaining ATIA professionals was a serious problem.

It is past time for the Liberal government to announce a bold redesign of the ATIA system.

First, Parliament needs to amend the ATIA in many ways, including the creation of a duty to document, authority for the information commission to oversee the exclusion of cabinet confidences, limiting the exemption that protects advice from the public service by requiring disclosure of background information, removing the blanket protection for third-party information, and the inclusion of a “public interest” override clause (found in some provincial statutes) that would guide the application of exemptions and be overseen by the information commissioner.

Second, administrative reforms are needed, such as changes to the categories for classifying documents as top secret or confidential, holding senior public servants accountable for complying with the ATIA rules, upgrading the status of ATIA co-ordinators within departments, making greater use of information technology, and showing greater respect for the recommendations of the information commissioner.

A broken access system which involves ritualistic compliance does not serve Canadians well. The system can be fixed, but it will require deep legislative and administrative changes. Prime Minister Justin Trudeau abandoned electoral reform; he should not be allowed to break his promise to reform the ATIA.

Paul G. Thomas is professor emeritus of political studies at the University of Manitoba. He once served on a national task force on ATIA and as an advisor to the information commissioner.