Summary of Findings

Fallen Behind: Canada’s Access to Information Act in the World Context. Report by Stanley Tromp, 2008

• On 12 key points, Canada’s 1982 Access to Information Act (ATIA) fails to meet the international standards of freedom of information law as they are set out in the document The Public’s Right to Know: Principles of Freedom of Information Legislation, 1999. (This document was drafted by Toby Mendel of the Law Programme of the London-based human rights organization known as ‘Article 19,’ and then subsequently endorsed by the United Nations Special Rapporteur on Freedom of Opinion and Expression.)

• Canada’s ATIA also fails to conform to many central FOI recommendations from at least ten other global political organizations, such as Commonwealth Secretariat, the Council of Europe, the Organization for Security and Co-operation in Europe (OSCE), and United Nations Development Agency (UNDP).

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• (Chapter 1) More than half of the nations with FOI statutes considered – that is, 42 out of 68 - explicitly grant the public some right to obtain government information in their Constitutions or Bill of Rights. These include France, Mexico, New Zealand, South Africa, and many Eastern European nations. Canada does not.

• (Chapter 2) The right of all people regardless of their citizenship or location to make access requests is the accepted international standard, included in the FOI laws of 51 nations, including that of Canada’s parliamentary model, the United Kingdom. But under the ATIA, non-citizens who are not present in Canada have no right to file requests.

• (Chapter 3) The Conservative Party of Canada’s 2006 election platform statement Stand Up for Canada pledged to subject the decision to invoke the Cabinet confidences to exclusion to a review by the Information Commissioner, and grant to the Commissioner the power to order the release of information. These promises were not fulfilled.

Yet the FOI statutes of 16 other jurisdictions grant an independent administrative appeal body the power to order information release. These include Mexico, Pakistan, India, New Zealand, Scotland, the United Kingdom, and Zimbabwe. The same power is held by the information commissioners of five Canadian provinces.

• (Chapter 4) The Conservative party pledged in 2006 to “expand the coverage of the Act to all Crown corporations, Officers of Parliament, foundations and organizations that spend taxpayers' money or perform public functions.” This promise was only partially fulfilled.

Yet in Canada more than 100 such quasi-governmental entities are still not covered by the ATIA. The exclusion of such entities such as the Canadian Blood Services and the nuclear Waste Management Organization could result in harm to public heath and safety.

On this topic, Canada has fallen farthest behind the world FOI community. The FOI laws of 29 nations cover legal entities performing ‘public functions’ and/or ‘vested with public powers.’ The statutes of the United Kingdom, India, and New Zealand provide good models. Most provinces (notably Quebec) contain much broader definitions of what is a ‘public body’ than is found in the ATIA – the criteria for inclusion can include public funding and control over appointments.

• (Chapter 5) The Conservative Party pledged in 2006 to “provide a general public interest override for all exemptions.” This promise was not fulfilled. Yet the FOI laws of 38 other nations – and all the Canadian provinces and territories (except one) - contain much broader public interest overrides than are found in the Canadian ATIA. These include Mexico, New Zealand, South Africa, Ireland, the United Kingdom, India and most Eastern European nations. Some of the laws state that the override should apply to all the FOI exemptions and be mandatory, not only apply to two exemptions and be discretionary, as is the case in the ATIA.

• (Chapter 6) The Conservative party pledged in 2006 to subject all ATIA exemptions to a “harms test.” This promise was not fulfilled. Seven ATIA exemptions still lack explicitly-stated harms tests and so are known as “class exemptions,” a situation that falls seriously short of world FOI standards. Worse, in 2006 the government amended the ATIA to enable it to withhold draft internal audits, in Sec. 22.1(1).

• (Chapter 7) The ATIA exemption for policy advice (Sec. 21) is far broader than in most of the world. Unlike with the ATIA, the FOI laws of South Africa, the United Kingdom and Scotland include a harms test for some of their policy advice exemptions. These and other laws also have public interest overrides for policy advice records. The FOI laws of seven provinces and territories have shorter time limits for withholding records under their policy advice exemption than the 20 years prescribed in the ATIA.

• (Chapter 8) The records of cabinet discussions are excluded completely from the scope of the FOI law only in Canada and South Africa. Here, the Information Commissioner does not even have the legal right to review such records. Yet cabinet confidences were subject to a mandatory exemption – not an exclusion - in Canada’s original federal Freedom of Information Act, Bill C-15 of 1979.

Nine Commonwealth nations have such a mandatory exemption – better yet, the United Kingdom’s is discretionary - and five of these are subject to public interest overrides. More than 50 other FOI statutes have no specific exemption for cabinet records at all (although they could still be withheld under other sections, e.g., national defence, personal privacy). Cabinet records can be withheld for 20 years in the ATIA, but only for 10 years in Nova Scotia’s FOI law.

• (Chapter 9) The Conservative Party pledged in 2006 to “oblige public officials to create the records necessary to document their actions and decisions.’ This promise was not fulfilled. The harmful trend towards “oral government” has spread in Canada: officials often fail to commit their thoughts to paper, and convey them verbally instead, primarily in an effort to avert the information emerging in response to FOI requests. Several national FOI laws prescribe record creation, and the duty to catalogue records in a way that facilitates access.

• (Chapter 10) Among the world’s FOI laws, the average request response time is two weeks. Eight nations mandate a reply within 10 days. At least 60 other FOI jurisdictions in the world prescribe shorter timelines than in Canada, and some have strong penalties for delays. Yet under the Canadian ATIA, public bodies must respond to requests within 30 days, and may extend this for another 30.

ATIA response delays have truly reached a crisis level. Some departments are so backlogged that they automatically add extensions of more than 100 days to most, if not all, requests. Others agencies grant themselves a 240 day extension - three times the previous average. In the ATIA, the reply may be extended for an unspecified “reasonable period of time” – which is not the global legal standard.

• (Chapter 11) Today there are more than 50 other statutory provisions in other laws that override the ATIA. The Conservative Party pledged in 2006 to remedy this problem, and so render the ATIA supreme on disclosure questions. This promise was not fulfilled. (The generally agreed-upon solution is to abolish ATIA Sec. 24, which embodies this problem.)

Several Commonwealth nations - including India, Pakistan and South Africa - establish that the FOI law will override secrecy provisions in other laws. In the United Kingdom, the Department of Constitutional Affairs has committed to repealing or amending 97 other pieces of legislation that limit FOI rights, and reviewing a further 201.

• (Chapter 12) The expressed purpose of the ATIA is to serve as a last resort for information seekers. But, on the contrary, many officials in Canada are now telling information seekers to use the ATIA for even the most innocuous records, instead of routinely releasing them as they should, a needless process that leads to delays and added costs to the state.

On the subject of pro-active publication and routine release, the rest of the world has left Canada far behind. Most nations from Albania to Zimbabwe prescribe the release of many vital types of information in sections of their FOI statutes and, unlike the ATIA’s perfunctory Section 5, many of these are exhaustive, sometimes over 400 words each.

• (Chapter 13) The ATIA does not contain any requirement for public education and the promotion of FOI rights. Yet several nations do mandate such activities in their FOI statutes, such as Mexico, Slovenia and Ecuador.

• (Chapter 14) There is just one narrow and discretionary case in which the public interest in environmental protection can override an ATIA exemption, one regarding third party information (Section 20). Yet as noted in Chapter 5, the FOI laws of 38 other nations have much broader public interest overrides, especially for environmental interests.

The United Kingdom passed a set of Environmental Information Regulations in 2004. Eight nations, mainly in Eastern Europe, explicitly mention the public’s right to environmental information in their Constitutions (which is also implicitly included in the general FOI guarantee in the Constitutions of 50 nations). As well, the 1992 Rio Declaration of the U.N. Conference on Environment and Development, which Canada signed, prescribed transparency on environmental information.

The 1998 Aarhus Convention prescribes the sharing and free public access to vast amounts of environmental information amongst 40 European and Central Asian nations, and some nations try to fulfill their Aarhus obligations through their national FOI laws. Yet there is no North American equivalent to such a treaty.

• (Chapter 15) There is no other employee protection in the ATIA, per se. In 2005, Parliament passed Bill C-11, the Public Servants Disclosure Protection Act. But it also regrettably amended the ATIA to prohibit the disclosure of certain information (with no mention of a time limit, harms test or public interest override). The United Kingdom and the United States have much stronger stand-alone whistleblower protection laws, which could serve as models for Canada.

• (Chapter 16) In 31 nations, the FOI law includes some kinds of penalties for obstructing the FOI process, including Ireland, Mexico, Pakistan, India, Scotland, and the United Kingdom. In the ATIA, there are penalties for destroying records and obstructing the Information Commissioner, but other nations go much farther. For instance, 20 nations impose fines for obstructing the FOI process, while 15 nations (eight of these in the Commonwealth) prescribe prison terms for impeding it. In Canada, Quebec’s FOI statute contains the broadest definition of obstructionism.

• (Chapter 17) The right for the public to access meetings – for several entities such as parliament, courts, commissions, municipalities - is prescribed in several national FOI statutes, and in ‘sunshine laws’ of every American state, but not in Canadian federal law.

In sum, the best examples for Canada to generally follow for overall inspiration are, the access laws of India and Mexico (in most but not all their respects). Amongst draft FOI bills, that of Kenya offers a superlative model.

Canada surely needs to at least raise its own FOI laws up to the best standards of its Commonwealth partners - and then, hopefully, look beyond the Commonwealth to consider the rest of the world. This is not a radical or unreasonable goal at all, for to reach it, Canadian parliamentarians need not leap into the future but merely step into the present.

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