The access-to-information system is busting: information czar

Information commissioner Suzanne Legaulthas raised a number of red flags about the state of the Access to Information system.  Sean Kilpatrick/The Canadian Press
Information commissioner Suzanne Legaulthas raised a number of red flags about the state of the Access to Information system. Sean Kilpatrick/The Canadian Press .

This summer, we spoke with Canada’s officers of Parliament. We profile each in an eight-part series. Read them all here.

Things are bad at the information commissioner’s office.

One federal institution has stopped responding to people using access to information laws, one ministry is still working through a request it said would require more than 1,100 days to fulfil, and complaints from Canadians are multiplying daily.

It’s difficult for Suzanne Legault, Canada’s information commissioner, to believe this is where a piece of legislation once considered ground-breaking has wound up.

The Canadian government, 30 years ago, ratified its citizens’ right to access information produced in federal institutions. The strength of the law was questioned from the get-go, but it was a start, allowing the public an inside look at some documents government would otherwise keep hidden.

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The law hasn’t changed much since its introduction, but is still often considered fundamental to democratic accountability. And it’s in an awful spot, Legault says.

As discouraging as all that may be, the watchdog won’t back down.

“We have two choices, right?” she says. “We could basically say we’re frustrated, this doesn’t work and takes too long, or we can just continue to push for reform.”

As she describes what she views as a slow erosion of access rights, Legault admits she can become frustrated.

“One would have thought that in 30 years we would have matured as a democracy and that the impact of that would be that we’d have an expansion of government disclosure,” she said, gazing down at her clasped hands.

Legault says it’s not all bad, that in some ways the government has opened itself up through initiatives such as open government and proactive disclosure.

“But in terms of the Access to Information Act itself, it’s actually contracting the amount of information that’s being disclosed,” she says bleakly.

Canada’s access to information laws exist in part to help the general public, journalists and experts keep governments in check, shifting the balance of power away from the state.

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Since the 1980s, five information commissioners, along with their staff and legions of advocates, have helped promote public access to government information.

Still, the legislation is crumbling, Legault says.

“If this trend continues, then the system is really busting,” she says, widening her blue-grey eyes. “Something is going to have to happen, because this will not be able to continue. It’s just not sustainable if it continues on the road that it is.”

Suzanne Legault, pictured in 2010, the year she became Canada’s information commissioner. THE CANADIAN PRESS/Fred Chartrand.

Complaints, silence and narrowing rights

To rationalize her grim outlook, Legault points to several incidents she says indicate the disintegration of her legislation.

Firstly, she has witnessed a steep increase in the number of complaints landing on her desk.

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Canada’s access laws give all Canadians the right to obtain records the government holds, subject to certain exemptions.

Any requester who feels an institution has not honoured its rights under the law can complain to Legault’s office, whether they believe more information should have been disclosed or that an institution is taking too long to release documents.

Overall in this fiscal year, which began April 1, there is a 50 per cent increase in the number of complaints coming to her, she said.

“What I’ve seen in the last four months is not explainable except for a deterioration of the system,” she says. “The last four months is completely unusual.”

Secondly, Legault notes that one institution, the RCMP, has completely stopped responding to people trying to use the access laws to get their hands on government documents.

This, Legault says, fails to respect the most basic obligations under the law.

Even her office wasn’t able to get a response from the national police force when it went looking for answers.

Finally, Legault points to a phenomenon she says has slowly deflated the worth of Canada’s access laws—a list of exemptions that has doubled since the Access to Information Act came into force.

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The law provides for certain pieces of federal legislation to be exempted from disclosure; that list overrules other requirements of the access law.

Examples of information protected under this provision include national security information (Aeronautics Act), taxpayer information (Income Tax Act) and census data (Statistics Act).

For years, Legault has been calling on parliamentarians to stop adding to the list.

“The pie of government information that should be disclosed is basically narrowing instead of expanding,” she says. “A lot of these exclusions are unnecessary.”

Getting more teeth

Legault has long been petitioning for changes to her act, but many of her calls seem to fall on deaf ears—an experience that is no doubt disheartening at times.

Her job requires a lot of grit, she admitted, sitting at the head of a board table in her office with a view of Parliament Hill.

“It requires a good level of stamina, that’s for sure, on a daily basis,” she said. “Sometimes you have to go for a long walk, reconnect, clear your head, and refocus and reenergize yourself.”

She never planned to become Canada’s information watchdog. In fact, she never had a specific career path upon which she wanted to travel.

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“I don’t think I ever in my career made a very conscious decision to say, I’m going here, I’m going there,” she said. “I think what guides my career, really, is I need to do something that I believe in and I need to do something that’s challenging and I need to do something that’s useful.”

One key characteristic for all commissioners, Legault muses, is being able to look after and take care of themselves.

“That way you keep positive and engaged and really focused on the work and the mission you have to do. But that requires a conscious effort sometimes,” she said.

For Legault, that mission includes repeating the changes she wants in the law and her mandate, as many times as it takes for people to notice and spur change.

Although the fundamentals of Canada’s access law are “pretty good,” the commissioner says, the fact it has hardly changed in 30 years is causing it to fall behind.

Information commissioners in other countries, and even in some Canadian provinces, have an order-making power. Commissioners in British Columbia, Alberta, Ontario, Quebec and P.E.I. can order institutions to either disclose more information or disclose documents within a shorter time frame.

Legault has no power to compel. She can only recommend, which is why she is currently before the courts, representing an individual who requested information from the Department of National Defence.

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The department said it needed more than 1,110 days to compile and release the information, a timeline Legault says is unquestionably unreasonable.

“After we gave them a recommended timeline, the minister basically sent us to take a hike,” Legault said. “So we had to take this request to court … In B.C. you would never see that.”

And although her office is already drowning in complaints, Legault still wants to see the act extended to include all branches of the government.

As it stands, the Prime Minister’s Office, ministers and their offices, the House of Commons and the Senate—which together form the seat of our democracy—are not subject to access to information requests.

Without an education and research mandate, however, Legault said she worries her ideas for reform will continue to go largely unheard.

“Part of my role is really to make it publicly known that, in fact, Canadians should be concerned that their access to information rights are actually eroding, and that the government is not addressing this issue,” she said.

Ultimately, she says, what she has to do is encourage Canadians to speak up.

“They have to voice their own concerns about this with their parliamentarians,” she said. “Parliamentarians are the ones who can actually change this. My role is to really make it known and publicize it.”


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