When political parties find themselves in opposition, promising to fix the access to information system invariably seems like a good idea. The public is often skeptical about whether the government is transparent and when combined with a woefully outdated Access to Information Act, reform provides a ripe target. Stephen Harper’s Conservatives promised a long list of access to information reforms before taking power, most of which were never acted upon. Justin Trudeau’s Liberals made similar promises when in opposition, unveiling a 32-point plan in June 2015 that pledged a fair and open government backed by access to information reform.
The government introduced Bill C-58 yesterday, the bill promoted as fulfilling its commitment on access to information reform. Discouragingly, it fails to do so. The bill does include some notable improvements, including implementing order making power for the Information Commissioner and establishing a requirement to justify, with written reasons, why information is redacted. However, the bill does not live up to the campaign promise nor does it fully address longstanding concerns with the law.
The bill substitutes a commitment to bring the Prime Minister and government ministers under the Access to Information Act with a promise of “proactive disclosure.” Proactive disclosure, a reference to an open-by-default approach for certain ministerial information such as mandate letters and briefing books, is not a substitute for access to information. In 2014, I critiqued the Conservatives’ open government initiative, noting:
An open government plan that only addresses the information that government wants to make available, rather than all of the information to which the public is entitled, is not an open plan.
Bill C-58 seeks to conflate access to information with proactive disclosure, treating the information the government wants to make available as the equivalent to the information to which the public is entitled and may want to access. In fact, the bill effectively renames the Access to Information Act with a new long title:
An Act to extend the present laws of Canada that provide access to information under the control of the Government of Canada and to provide for the proactive publication of certain information
The decision to embed proactive disclosure within the title of the act and treat it as an equivalent part of the access to information system represents a dangerous watering down of the legislation and opens the door to shifting more and more information toward government determining what the public is able to see rather than responding to public requests for information. The Standing Committee on Access to Information, Privacy and Ethics 2016 report included several recommendations related to proactive disclosure, but those were framed primarily as open government and open information policies.
The problems with the bill do not end there. It creates the prospect of refusing to respond to requests that are considered vexatious or in bad faith and it resurfaces the possibility of bringing back user fees beyond the $5 application fee. There may be justifiable policy reasons for these provisions (the ETHI committee recommended the refuse to process requests in such circumstances in its 2016 report. It also called for the elimination of the $5 fee), but the government has not fostered trust with this bill and its plan for access to information.
The bill also fails to pick up on several key recommendations that have surfaced over the years. It does nothing to address overbroad exceptions that often result in redacted information, blank pages throughout the request or lengthy delays. It also does not adopt one of the ETHI committee’s most important recommendations: a general public interest override. The recommendation stated:
That in the first phase of the reform of the Access to Information Act, the Act be amended to include a general public interest override, applicable to all non-mandatory exemptions, with a requirement to consider the following, non-exhaustive list of factors:
Open Government objectives;
- environmental, health or public safety implications;
- whether the information reveals human rights abuses or would safeguard the right to life, liberty or security of the person.
The general public interest override can cut both ways, sometimes leading to more disclosure, sometimes less. However, many access to information laws include the analysis to ensure that the public interest in factored into the decision determining what information is released. The federal law does not do so and the bill is silent on the issue.
The government and Treasury Board President Scott Brison may respond that the bill also creates a mandatory five-year review, so further reforms could be adopted during the regular reviews in the future. Yet the mandatory five-year reviews are no guarantees of reform – the PIPEDA five-year review has failed to create a regular process for legislative updates – and are no substitute for a bill that fails to fully addresses longstanding problems with the law or live up to campaign commitments to fix the system.