Part of the ‘second-wave’ of FOI regimes, Canada’s Access to
Information Act has commonly been judged as one of the worst among its
peers – Australia, the UK, Ireland and New Zealand.
Passed in 1982 and – on paper – relatively comparable with its counterparts, Canada’s ATI Act suffers not so much through inadequate provisions, but a lack of political will.
Canada’s legislation is slightly more restrictive in having fees for making a request ($5); having no overriding public interest test; in making certain of the exemptions mandatory; and in excluding all Cabinet documents (colloquially named the ‘Mack Truck’ exemption). Requests can only be made by Canadian residents or persons or corporations present in Canada – full addresses must be provided in writing and requests cannot be sent via email. The overseeing department for the ATI Act is theTreasury Board.
From the outset, FOI has had no ‘political patron’ in Canada. When introduced, the Trudeau government never had any enthusiasm for the Canadian legislation, and subsequent governments have suffered embarrassing FOI-related exposure. Currently, Canadian MPs’ are resisting disclosure of more detailed breakdowns of their expenses. A request for the information from the Auditor-General has been denied, after a 10-month delay by the all-party Board of Internal Economy, responsible for House spending. All political parties - apart from the Bloc Quebecois - support the Board’s decision.
Compounded with a lack of political will, Canada’s regime also suffers the same problems as its peers – resourcing problems, a lack of scope, limited powers of appeal bodies and delay, delay, delay. “This right [to information] is at risk of being totally obliterated because delays threaten to render the entire access regime irrelevant in our current information economy,” said the interim Information Commissioner in her 2009 annual report. (For the record, cases taken to the Information Commissioner’s Office are now taking two years.)
Government departments have been severely criticised not only for delay but obfuscation, unsatisfactory (and illegal) processes, unnecessary high refusal rates and inadequate staff training. The Canadian ICO’s recent assessment of FOI compliance in a selection of government departments found half had “a below average or inferior performance in 2008–2009.”
However, it is important to note the role that FOI has played in bringing controversial government activities into the public arena, and Canadian business and media’s enthusiasm for FOI. Less than 40 per cent of requests come from the ‘public’, the rest coming from businesses, NGOs and unions, the media and students/academics. The Canadian media have been heavy users of the Act, in comparison with their Antipodean counterparts.
In January this year, Canadian magazine The Walrus lamented the state of FOI in an article entitled ‘The Dark Country’. It quoted University of Ottawa law professor Amir Attaran: “Compared with the US and Britain, Canada’s system of disclosure is far inferior.” A 2008 study by the Canadian Journalists’ Association and the Canadian Newspaper Association ranked Canada’s law behind those of India, Mexico, and Pakistan. It was factors such as the limited powers of the Information Commissioner (unable to order disclosure) and limited scope (many government quangos are not covered) that led to such an assessment. Former information commissioner Robert Marleau says, “There’s less information being released by government than ever before.”
More recently, political leaders in Canada have promised to revamp the Act and restore faith in government through being more committed to transparency. It is widely agreed that the Act needs updating; it has been reviewed many times since it was passed and many common ideas for reforms have been floated – restricting exclusions and exemptions from the Act’s coverage and reducing the provision of mandatory statutory exemptions. In 2006 the government passed the Federal Accountability Act which extended the scope of the FOI regime to include some Officers of Parliament and Crown corporations. It also added a ‘duty to assist clause’ to the Act, requiring institution to help requesters clarify requests and get the information in the desired format. But disagreement remains – over whether MPs’ and the judiciary should be covered, the status of cabinet documents, the role of the Information Commissioner and even what the Act should be called.
While discussion documents, consultations and draft bills continue to roll out, reform-advocates have felt dismissed: DemocracyWatch lists the eight broken promises of the Harper Government; Last October, Justice Minister Rob Nicholson rejected a recommendation of a House of Commons committee that the ATI law undergo a overhaul, despite intense lobbying for the Information Commissioner: “ More than ever, the Act needs to be strengthened to reflect the realities that have taken shape since its adoption, and now is the time for action .”
- How to make a FOI request in Canada – a guide
- Treasury Board Secretariat
- The Canadian Information Commissioner’s Office
- Most recent statistics on requests made in Canada
- The National Freedom of Information Audit 2009 – systematic requests were made across Canadian government departments to compare performance.
- Special Report on ATI – Canadian Information Commissioner’s special report to Parliament on the state of FOI across government departments (warning: this is a very large pdf file)
- Parliamentary Library report on the proposals to reform the ATI Act