Liberals consider giving ministers veto over information czar’s planned new powers

Suzanne Legault, Information Commissioner of Canada, holds a press conference in the National Press Theatre in Ottawa on March 31, 2015. Federal agencies are declaring records to be cabinet secrets more often - placing them completely out of public reach and giving the information watchdog reason to believe the stamp of confidentiality is being overused. THE CANADIAN PRESS/Sean Kilpatrick.

OTTAWA – The Liberal government is floating the idea of a ministerial veto over planned new powers for the information commissioner — a move that would give cabinet the power to block release of documents.

During the election campaign, the Liberals promised reforms to Canada’s Access to Information regime, including new authority for the information commissioner to issue “binding orders” for disclosure of documents.

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The Access to Information Act allows requesters who pay $5 to seek a range of federal files — from correspondence and briefing notes to expense reports and studies. But often information is blacked out, prompting complaints to the commissioner.

Currently the commissioner, an ombudsman for users of the access law, can investigate complaints and recommend that records be released. But she cannot force a government agency to do so, and must head to court to pursue the matter further.

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Provincial commissioners in British Columbia, Alberta, Ontario, Quebec and Prince Edward Island have the power to order the release of government information. Many openness advocates have called for the federal commissioner to have similar authority.

The Liberals recently included the proposal in a basket of changes to be introduced in legislation later this year or early next.

As part of an online consultation on the proposals, the government notes some jurisdictions have combined order-making powers for the commissioner with the principle of ministerial responsibility.

“They do this by providing for a ministerial or cabinet override of a commissioner’s order to release government information. In other models, the government can ask for review by a court if it disagrees with a commissioner’s order to release government information.”

The notion the Liberals would even raise the possibility of a ministerial override alarmed the British Columbia Freedom of Information and Privacy Association.

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“We think this is a bad idea,” the association’s executive director, Vincent Gogolek, recently told a House of Commons committee studying the access law.

“We look forward to seeing the commissioner being given full order-making powers. We’re not in favour of half-measures.”

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Gogolek says the ministerial override model has led to a number of abuses in Britain, including the so-called Black Spider Memos controversy involving Prince Charles.

In that case, England’s attorney general vetoed the release of letters and memos to the Guardian newspaper that the Prince of Wales had written to various ministers over the years, a decision that was eventually overturned in the courts.

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Duff Conacher, a founder of the group Democracy Watch, told the Commons committee that information may reasonably be off-limits to requesters when it deals with sensitive areas such as the defence of Canada, law enforcement, national security or personal matters.

But the information commissioner should have the right to decide whether an exemption applies “in every single case,” Conacher said. If the government disagrees, it could appeal to the courts, he added.

“That’s the way the system would work most effectively, and ensure openness by default.”

The final shape of the government’s proposal on the information commissioner’s powers could depend on recommendations from the committee.

In outlining the federal proposals for access reform, Treasury Board President Scott Brison said that while the government had made certain commitments, he was open to hearing what MPs had to say.

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“We will be taking seriously all the recommendations of this committee.”

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