Canada’s Access to Information Act
Measuring Up?
Panel 3: Select Country Cases
April 28, 2009 18:15
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 quasiconstitutional 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
Top 5 Exemptions
Exemption
Percentage of total exemptions used
Personal Information
30%
International affairs and defence
20%
Operations of government
14%
Law enforcement and investigations
Third party information
12%
9%
Request Disposition
2005-2006
All Disclosed
Disclosed in Part
Other
28%
46%
26%
2006-2007
23%
50%
27%
2007-2008
18%
55%
27%
Change
-10%
9%
1%
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
RESPONSES TO NON-COMPLIANCE
COMPLIANCE THROUGH
INFORMATION AND PARTNERSHIP
FACILITATING COMPLIANCE
Annual and Special Reports to
Parliament
Review of Complaints to Identify
Systemic Issues
Suasion / Resolution
Adversarial
Advice and Representations to
Parliament
Systemic Investigations (Proactive)
Investigations and Systemic
Investigations (Reactive)
Exercise of Formal Powers, e.g.
Subpoenas / Hearings
Early Resolution
Non-Resolved Complaints
Well-Founded Complaints Accepted
Federal Court Actions
Commissioner-Initiated Complaints
Interventions in Court
Mediation / Negotiation
Referral for Prosecutions
Report Cards
News Releases / Media Interviews
Review of Extension Notices
Speeches / Presentations /
Information Sessions / Seminars
Input and Representations to Central
Agencies, e.g. Treasury Board
Secretariat
Consultations with Access
to Information Stakeholders, including
Institutions and Users
Compliance Programs
Participation at Access to Information
Community Events
Case Summaries and Commissioner’s
Findings
Federal / Provincial /
Territorial / International Liaison with
Information and Privacy
Commissioners
Reference Guides / Information
Notices / Best Practices
Informal Representations to Senior
Officials
Commissioner’s Interpretations of
Policy Positions
Investigation Guidelines (GRIDS)
Reports of Findings and
Recommendations
Training
Special Reports to Parliament
National and International Liaison with
Freedom of Information Communities
and Civil Society Groups
International Parliamentary Assistance
Website / Blogs / Podcasts
Right to Know Week
GENERAL APPLICATION
SPECIFIC APPLICATION
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
Time Required to Complete Requests
120 days or over
(12%)
61 to 120 days
(11%)
Less than 30 days
(57%)
31 to 60 days
(20%)
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 21st 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