A Comprehensive Framework for Access to Information Reform

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Introduction

Canada was one of the first countries to enact access to information legislation and when the Act came into force on July 1, 1983, it compared favourably with the freedom of information legislation already in place in a few Canadian provinces and a small number of foreign jurisdictions. The Act is of crucial importance in furthering democracy and the principles of openness that are the fundamental values of the society in which we want to live. The Supreme Court of Canada has described the Act as a pillar of our democracy which provides citizens with a right of access to government information.  In Dagg v. Canada (Minister of Finance) [1997] 2 SCR 403 Mr. Justice La Forest said on behalf of the entire Supreme Court:  "The overarching 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."   

In this regard, there is nothing seriously wrong with the Access to Information Act as it is today. Indeed, the Government believes that the Act is basically sound in concept, structure and balance, and the Information Commissioner himself has stated that it is "a very good law." At the same time, more recent freedom of information initiatives underscore the fact that our law could be modernized, especially in regard to the scope of institutions covered by the Act. Since the Act came into force in 1983, the context of transparency has changed. In October 2004, the Government tabled Bill C-11, a n Act to establish a procedure for the disclosure of wrongdoings in the public sector, including the protection of persons who disclose the wrongdoings. As a result of recent court decisions, the practices of the Privy Council Office regarding Cabinet confidences have changed. Also, Ministers and their staff routinely put travel and hospitality expense information on the Internet as a matter of policy. 

These are positive steps toward meeting the expectations of the Canadian public for a transparent government. However, they do not address the full range of changes in government. Since the Act came into force, government functions have been increasingly outsourced to consultants or contractors, or assigned to alternate service delivery organizations, such as NAVCAN. This suggests that improvements should be made to the federal access to information system to ensure that more entities that perform government-like functions are accountable under the Act. As well, technological advances have led to electronic means of storing and managing information, and the availability of websites encourages the government to provide information through proactive disclosure. These are also other changes that reform of the Act will have to address.

In considering options for access reform, the Government has studied the recommendations found primarily in certain key documents: the Task Force report, entitled "Access to Information: Making it Work for Canadians", reports from Information Commissioners, Private Members' Bills, and international sources. In August, 2000, the Minister of Justice and the President of the Treasury Board announced the establishment of the interdepartmental Access to Information Review Task Force. The Task Force was asked to review and make recommendations on all components of our Access to Information framework. Its Report, "Access to Information: Making it Work for Canadians," was released on June 12, 2002. The Task Force made a broad range of recommendations (139) for legislative and administrative changes that have the potential to impact the way every federal department, agency and Crown corporation does business. The recommendations are based on comprehensive research and analysis as well as on consultations with international partners, stakeholder groups and the public. The Report, together with the background research papers prepared for the Task Force, comprise a significant contribution to our knowledge of the federal access to information regime.

Successive Information Commissioners have highlighted possible legislative reforms, including the 1994 report entitled The Access to Information Act: A Critical Review, and the Blueprint for Reform outlined by the current Commissioner in his 2000-2001 Annual Report.

Over the years, the Government has studied carefully the Private Members' Bills that have been introduced in the House, among them the more recent Private Members' Bills of Mr. John Bryden, M.P. Liberal (Bill C-462) and Mr. Pat Martin, M.P. New Democrat Party (C-201). These Bills were introduced in 2003 and 2004, respectively, and reflect a number of recommendations made by the Task Force Report.  The Government has studied the proposals in the Private Members' Bills and has found them a useful baseline for consideration, like the reports of the Task Force and the Information Commissioner.

Finally, there have been some interesting developments in access to information legislation internationally and within Canada. The Committee members may wish to compare our federal Act with a number of statutes in force in foreign jurisdictions as well as in Canada. Copies of various foreign (United Kingdom, New Zealand, Ireland and Australia) and provincial statutes (Québec, Ontario and British Columbia) can be made available to the Committee.

All of these sources have played an important role in understanding the complexities of access reform, and the Government seeks the views of the Committee on the issues put forward in this paper.

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