Access to government information legislation: Comments on Bill C-43

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According to the Cabinet Discussion Paper on Access to Information Legislation, the generally accepted objectives of such legislation are to provide:

  1. a general right of access to government records exercisable by clear written request to the government institution that has them;
  2. exemptions as limited as possible allowing a Minister to deny access in order to protect public or private interests; and
  3. a review mechanism to ensure that denials are properly justified in view of the exemptions.

While we might disagree on some of the finer details, the B.C. Civil Liberties Association agrees that these three points comprise the essential basis for any meaningful access to information legislation. We are, however, deeply concerned that the present proposals contain enough ambiguous and inappropriate exemptions and a sufficiently weak judicial review mechanism so that, in consequence, the ability to meet the stated objectives of this legislation will be seriously compromised.

Our discussion of these legislative proposals will be divided into two parts. The first part will discuss the rationale for having strong access to information legislation and the basic flaws in the federal proposals. The second part will examine the proposed legislation in depth and make recommendations for change; there will be a short summary of these recommendations at the conclusion of this part.

I. Access to information

The democratic principles that underlie the federal government’s proposed access to information legislation are very clear. In a democratic society, the public must be able to influence and hold to account the activities of the government that it elects. To do this properly, it must be possible for the public to formulate opinions and made decisions based on an informed examination of all the issues and matters affecting government decision-making. This, in turn, is only possible if there is clear, general access to the information government uses to base its decisions and develop its policies.

This “informed debate” argument for access legislation has increasing significance in a time when government is more and more the greatest gatherer, producer, and controller of information on all aspects of life within the society that it governs. It is essential, therefore, that strong access legislation should exist to help maintain and, where necessary, to help restore public confidence in our democratic institutions’ ability to respond to the directions and concerns that are indicated by the public. Moreover, strong access legislation is required to provide a check on the possibility that government may use these vast resources of information selectively to shape public opinion to serve its own purposes and not those of the people that it is elected to serve. Examples are apparent throughout today’s world, including in Canada, where the large role government plays in the shaping of our lives, through regulating the media, educational services, health care facilities, other social services, etc., has often made it the object of suspicion and distrust. This must be attributable, at least in part, to a perceived lack of “openness” about government’s activities and objectives. In these circumstances, concomitant suspicions naturally arise about the role government is playing in the shaping of people’s attitudes and ways of life.

While strong access legislation would not necessarily allay all public feelings of distrust that have arisen about the workings of government—indeed, it may serve to vindicate such feelings—at the very least, it would provide an opportunity for the public to monitor the activities of government and gauge its responsiveness, and hold it accountable in an informed way. The B.C. Civil Liberties Association believes that the present legislation, if it is not significantly altered, will not provide these opportunities. The reason for this view is essentially twofold:

  1. the exemptions to access are too numerous and are often too broadly worded, and
  2. the judicial review mechanism is inadequate because it does not permit a judge to disclose information in all cases, if he/she feels that its content does not fall under one of the exemptions, nor does it permit a judge to disclose information in some cases where he/she holds that the information is properly classified as exempt, but should be released because, all things considered, the benefit to the public from disclosure would justify its release.

The B.C. Civil Liberties Association supports the view that exemptions on access are only justified in cases where the release of information would be clearly contrary to some legitimate interest that is specified by legislation. This seems to us a reasonable position, yet many of the category exemptions included in this legislation may preclude disclosure of information that would not be contrary to any interest at all. In other cases, access may be denied even though disclosure would be overridingly in the public interest. The solution to both of these problems is to permit an independent body, the courts, to balance those considerations and overturn any decisions if it feels justified in doing so. Arguments against this sort of full judicial review, concerning ministerial responsibility, for instance, are not sufficient and will be addressed below, along with a further elaboration of the points just mentioned.

II. The legislative proposals

a) Institutions affected

Under section 3, access if only permitted to institutions listed in the attached schedule; information in government agencies not listed in this schedule is, therefore, exempt. Since a question may be raised about whether material held by an unlisted institution is properly exempt, the BCCLA recommends that all government institutions should be listed appropriately in either a category for exempt institutions or a category for institutions where access is permitted.

Crown corporations and regulatory agencies are noticeably absent from the present list and since they are often subsidized by public funds and are, in fact, often quasi-governmental, they should be included.

b) Who can apply?

Under the present proposals, the only people who may apply for information are:

  1. Canadian citizens,
  2. permanent residents are defined by the Immigration Act, and
  3. provincial or federally incorporated corporations. (Sec. 4)

There seems to be no compelling reason why foreigners should not be permitted access to government information, especially since the Act’s regulations may provide for the recovery of some or all of the costs from such applicants. Access by foreign media may play an important role in putting the spotlight on government activity. In other cases, foreigners may be adversely affected by various action of the Government of Canada and it seems reasonable that in these cases they should have an opportunity to examine any relevant documents, e.g., the decisions of immigration authorities would be an obvious case where foreigners should be permitted access; in other case, foreign businesses may be directly affected by the action of Canadian government and the same argument in favour of access applies here.

The BCCLA recommends that the class of people who may apply for access be extended to include foreign individuals and corporations.

c) Indices to information

The proposed legislation requires government institutions to provide “indices of classes of records… in sufficient detail to facilitate the right of access…” (Sec. 5(1)b); this information is to be published annually with an update at least twice a year.

While it is essential that the indices contain enough information to facilitate access, this may not occur in many cases if the indices themselves are too complex for lay people to comprehend. It would seem important, then, for a provision to be included in section 5, which states that the information in the indices shall be presented in a clear, straightforward manner that can be easily understood by those wishing to gain access. The Information Commissioner should be required to see that these two provisions are respected and that some consistent standards are upheld in the formulation of the indices. One can imagine the problems that could arise if one had to go through the indices of six or seven different government institutions, all with different index formats, before locating the pertinent document. Again, since there appears to be a fair amount of discretion that may be exercised by government institutions in this regard, many of whom will not be favourably disposed to providing ready access to applicants, the Information Commission should be charged with seeing that some standard is maintained in the production of indices and that the spirit of Section 5(1)b is upheld.

The BCCLA is also highly concerned that exempt material is not required to be listed in the index. Such material should not be omitted from indexing since legitimate question may arise about whether or not it is properly classified. We do, however, recognize that some classes of information may not be suitable for inclusion in any index because the very knowledge of their existence would cause significant harm. Perhaps the solution in these cases lies in listing the more sensitive information in some more general manner so that a balance can be struck between the public right to know what is available, and the legitimate security interests of the government institution in question.

d) The request

Section 6 should be expanded to indicate specifically where applications for access will be available and where they will be received. In both cases, the obvious choice is the Post Office as it is, perhaps, the single most widely accessible institution to the Canadian public. There is, in addition, another reason for having the Post Office as the point of receipt for access requests. This would provide the applicant with a clear commencement date under section 7 for the initial 30 day period, and would avoid the possibility that government institutions may unreasonably delay processing applications by claiming that they received them later than one would normally expect.

To clarify matters, a receipt should be provided to the applicant at the Post Office indicating the commencement date; a postmark on the application could then serve to notify the institution of the same.

e) Time limits

From the time the application for access is received, the government has 30 days in which to give notice that they will either deny access or give it (section 7). If access is to be given, this statute requires that the institution “give” access; it does not specify further time limits for the institution to actually convey the material. Consequently, there is no requirement that the institution forward the information at some reasonable time after the decision is made to release it. The natural inference here, from the applicant’s point of view, is to presume that the information will be forthcoming immediately after the decision is taken. If this is the intent of the legislation it should be made explicit. We recognize, however, the “immediate” access may not always be possible from a practical point of view; for example, documents requiring translation, or where large numbers of records have to be compiled, will pose some time delay problems. The proposed Act should indicate that information will be made available to the applicant “promptly” after the decision has been made to release it.

Government institutions are permitted under section 9 to extend the thirty day period in cases where more time is required because:

  1. the request if for a large number of records,
  2. consultations are required, or
  3. third party notice must be given.

While we appreciate that there will be a need to extend the time limits occasionally, we are concerned because there is no limit on the amount of time the institution may extend the initial 30 day period. Even though there is a right of appeal to the Information Commissioner, we feel that this may place an unfair burden on the applicant since in most cases he or she may not know whether the extension is reasonable and, therefore, whether or not to appeal. It should also be considered that similar legislation in the U.S. allows only 1/3 the time (10 days) permitted Canadian institutions to process applications for access. To avoid unnecessary delays, it is therefore recommended that all extensions to the initial 30 day period require the approval of the Information Commissioner.

f) Existence of records

section 10(2) authorizes government institutions not to disclose whether a document exists if it is believed to fall under one of the exempt categories. The intention here is clearly to allow institutions not to disclose that a requested record exists because mere knowledge of its existence or non-existence might be harmful. The problem here is that it is hard to understand in most cases how the knowledge of the existence of documents under the exempt categories would cause harm. Consequently, there should be less discretion than is presently allowed. The government should more clearly prescribe the circumstances under which refusal to indicate whether or not a document exists is justified.

g) Fees

While the BCCLA agrees with the framers of this legislation that there should be some mechanism by which at least some of the costs of facilitating access can be recovered, we are concerned that by setting fees by regulation, with no specific instruction on how much of the costs are to be recovered, may encourage a prohibitive fee schedule, even though these fees may reflect the actual cost of providing access. If this were to happen, it would be contrary to the intention of the legislation which is to provide the Canadian public with general access to governmental information. Given that the average cost to the American government of filling requests for information was somewhere between $150 and $300 in 1976, the cost to the majority of Canadians could indeed be prohibitive.

The BCCLA would recommend that access should not be denied any individual because he/she lacks the funds to pay for the searching our and reproduction of a records(s). While we are aware that such a system could be abused, and may be quite costly, we would argue that it is in the best public interest that access be generally available to all. If it turns out that this policy is abused or is simply too costly to administrate, a change could be recommended after the 3-year review.

h) Exemptions

Section 13 states that information obtained in confidence from foreign states, organizations of states, and provincial governments must be kept secret; information obtained in confidence from the institutions of the aforementioned governments must also be kept secret. The government has the discretion to release such information only if the source consents or makes the information public.

The following factor is clearly in mind with respect to this exemption: assuring a continued supply of information from other governments and their institutions. Certainly any weakening of this exemption could result in some sources of information drying up as parties will be less likely to supply information on a confidential basis if they are aware that there is a possibility that it will be released. On the other hand, this exemption is certain to include information whose release is in the public interest, where the harm done to future supply of confidential information is outweighed by the benefit to the public from disclosure. Section 13, however, does not permit such information to be disclosed unless the source consents and, indeed, the section instructs heads of government institutions in this manner by using the imperative statement “shall refuse to disclose.” Presumably, then, this would not permit full judicial review of decisions not to disclose by excluding the application of a harms test.

It is difficult, however, to ascertain whether in such cases the exemption should be weakened to allow the courts to determine whether harm from disclosure is outweighed by the benefits. Arguably, the very existence of the possibility of such a review would decrease information supply, by increasing the probability of disclosure. However, it is also clear that some information must, of necessity, continue to be supplied to the federal government by other governments for co-operative efforts to continue. It appears that:

  1. there is no empirical evidence as to the size of the potential information supply decrease and
  2. there is not way to judge “a priori” the value to the public of such lost confidences.

It seems to us, therefore, that the reduction information flow attendant on permitting judicial review of the merits of secrecy may very well be outweighed by a concern for public knowledge. Consequently full judicial review should be permitted.

Section 14. This section allows a government institution to retain information which might “reasonably be expected to be injurious to… federal–provincial affairs.” Arguably, this section is unnecessary since Cabinet deliberations, including memoirs, are protected elsewhere (section 21), and advice, negotiations and plans are also protected (section 22). These sections seem to provide more than sufficient protection in themselves. There appears to be no compelling reason then to pay special attention to plans or advice prepared for the conduct of federal–provincial affairs; moreover, there is the danger here that this exemption may extend beyond advice to information that could be embarrassing to provincial or federal governments. The withholding of such information would be of dubious benefit and would clearly be contrary to any principle of government accountability. It is strongly recommended that this section be deleted.

Section 15.This section exempts information for disclosure that could “reasonably” be expected to be injurious to the conduct of international affairs, to the defence of Canada or other allied states, or to the detection, prevention, or suppression of subversive activities. Subversive activities are defined as including:

  • espionage against Canada
  • sabotage
  • terrorist acts against Canada
  • acts directed to violently overthrowing the government and
  • “activities threatening the safety of Canadians.”

Clearly, these definitions are too broad, as any act that threatens the safety of Canadians falls under the exemption. RCMP “dirty tricks” and other similar activities could find a safe haven under this exemption. At the very least, the part of this section that refers to “activities threatening the safety of Canadians” should be deleted. The definitions of the other activities, “sabotage”, etc., need to be specified further so that they are also not interpreted broadly for the same sorts of misuses.

Note that the word “reasonably” is used to modify the expectation of injury; on review, then, there is some requirement to justify the classification of the document. However, the balancing process is narrow: once some reasonable expected injury is found in relation to one of the matters listed, the document can be withheld. Should not the harm done to defence and other interests be weighed against the public’s interest in disclosure? The interests of national defence and domestic order are probably not always paramount. While it is clear that the defence and other domestic order establishments require some measure of secrecy to operate effectively, it is equally clear that the greatest deterrent to illegal or immoral behaviour among these establishments is likely the spectre of disclosure. It is natural that those concerned with keeping order would give undue weigh tot ends of their work; it is naive to assume that none will ever get “carried away”. Hence, a strong argument can be made that a document should not be kept secret automatically once an injury can be shown to national defence or domestic order. Indeed, since the exemption is permissive, some balancing is contemplated. This section, therefore, should permit judicial review of disputes to disclose material if the benefit to the public interest outweighs any harm done to the institution. The charge that permitting full judicial review in this area would result in an increase in damaging leaks of information is probably unfounded as review of these cases is certain to be characterized by judicial restraint in any event.

Section 16. This section pertains to the protection of information related to law enforcement and investigations. The exempt information must relate to the detection, prevention, suppression of crime, the enforcement of any law of Canada or of a province, or information relating to investigative techniques. Feeling that these provisions would not provide sufficient protection, another section was added that exempts information that could be “injurious to law enforcement,” or injurious “to the security of penal institutions,” or to the conduct of investigations by investigatory bodies specified by regulation (section 16(1)c).

Given that this last provision, section 16(1)c, is wide enough to engulf the remainder of this section and could be used to hide just about anything law enforcement officials should choose, it should be deleted. Note that provisions such as these are clearly contrary to one of the stated purposes of the legislation, namely, to provide exemptions that are as limited as possible where some legitimate interest is at stake.

More generally, the language of the other provisions is such that they could justify non-disclosure of information where there is no compelling reason for keeping such information secret. Consider first, information compiled for enforcing laws (section 16(1)a). Some of this information may be part of a closed file; disclosure may not tip off anyone and technical details on secret investigative techniques could be severed. Other information collected by the agency during its investigation may do no harm by its release even if it were released during an investigation. And again, the point can be made that the interests of law enforcement are not always paramount: illegalities and immoralities should be exposed. Clearly, these provisions require further specification.

Section 18. The exemptions here cover information that might be broadly classified as the economic interests of Canada. The major objection to this section is that it may withhold information in cases where there would be a clear, overriding benefit to the public from disclosure. This particularly applies in instances where government researchers may have developed new scientific techniques which would greatly aid the public. Again, complete judicial review seems to be the solution.

Section 19. This section exempts personal information from disclosure and, indeed, instructs heads of institutions using the imperative phrase “shall refuse to disclose.” Disclosure is only permitted where the individual to whom the information applies consents, or where the information is part of public record. The public interest in the disclosure of this type of information is, therefore, to be ignored. Amendment to permit complete judicial review is recommended.

Section 20. This section defines the classes of information that are provided by third parties and are exempt from disclosure. The BCCLA is concerned that section 20(1)b would provide a loophole through which all scientific, financial, commercial, or technical information could be exempted merely by having it stamped “confidential” at the place of origin. Furthermore, there is certainly sufficient protection of third party rights in section 20(1)c and d. Consequently, this provision should be deleted.

In relation to 20(2) we fail to see the reasons for exempting product or environmental testing if it is done as a service and for a fee, or if the government believes the results are misleading. In the latter case, there may be considerable dispute about what is a fair or a misleading test, and it would seem reasonable, then, to permit the public to decide this in an open forum. In the former case, it must be presumed that this sort of testing is done in the interests of maintaining a standard of public safety and, again, it seems reasonable that the public should know how these standards are being applied and on what basis decisions are made. It is strongly recommended that section 20(2)a and b should be deleted.

Section 21. While we recognize the need for the discussions of Cabinet to be confidential, all material involved in this area of the decision-making process should not be kept secret as this section seems to indicate. Factual material, that is, surveys, reports, statistical information, and discussion papers that do not include the explicit deliberations of Cabinet, should not be withheld from the public. If such information is to be exempt, one of the major purposes of this legislation fails, namely, to provide a means of holding the government decision-making process accountable; this simply cannot be done if there is no public access to the documents that government sues to base its decision. At the very least, section 21(1)b should be deleted and further consideration should be given to making more factual records under this section accessible.

Section 22. Part of this section protects from disclosure records containing advice or recommendations developed by a government institution or by an outside consultant (section 22(1)a). Similar to the concerns raised in preceding sections regarding the right to know the rationale for government decisions, it is essential that as much information as possible of this nature be available. On the other hand, we recognize that there may be situations where advice or recommendations developed for a government institution should be kept confidential. It seems, then, that the circumstances under which this information should be withheld should be more clearly prescribed so that information is not exempted unnecessarily. For example, this provision could be read broadly to include all sorts of factual studies prepared for government that only peripherally contain recommendations, or whose recommendations or advice should reasonably be released to the public.

The protection from disclosure of exempted documents under section 22 for 20 years seems an arbitrary, unnecessarily long time. Given the great changes that have occurred in government over the last 20 years, and are likely to occur over the next 20 years, such a long delay will make the exempted material of little or no value in helping the public to gauge the responsiveness and accountability of government. A ten year exemption period could probably be implemented with little harmful effect to the administration of government. A shorter time limitation such as this could also serve to remind Cabinet that it is accountable for its actions and that its deliberations will eventually be scrutinized publicly. A twenty year waiting period is less likely to have any of this effect. Accordingly, a similar ten year exemption should be added to section 21.

i) Powers of the Information Commissioner

The Information Commissioner must receive and investigate complaints from persons who are seeking access to information and who have been refused, or from persons who claim that they have been overcharged for access, or from persons who claim time limits have been unreasonably extended, or “in respect of any other matter relating to requesting or obtaining access under this Act” (section 31).

One comment needs to be made with respect to the Commissioner’s powers: there are no time limits placed on how long the Commissioner may take to respond to appeals which are brought before him/her. Some maximum time limits should be set, therefore, to prevent delay.

j) Judicial review

The BCCLA strongly recommends that in all cases where there is a dispute about the disclosure of information, the applicant should have final recourse to a complete court review of the situation. In the case of such a review, a judge should be empowered to decide whether or not information was properly classified in an exempt category and rule on disclosure accordingly, and if it is found to be properly classified as exempt, a decision could still be made to release the information if the benefit from permitting access was such that there was a greater interest in disclosure (implicit here, of course, is that the greater interest in disclosure will be synonymous with what is in the public interest).

The justification for this position should be clear. First, it is only through independent review of decisions not to disclose that the principles of fairness will be protected in all cases. Clearly, government institutions cannot be considered independent. In many cases, through intimate contact with information under their control, they will develop biased opinions about the consequences of disclosure and will not be able to make objective decisions about release. Second, fear of leaks of sensitive information should not be a concern since the courts are certain to exercise great restraint when handling material of this nature. Finally, it should be obvious that authority should be granted to release information when the benefit from disclosure outweighs the interest to withhold.

The present proposals limit judicial review in some matters by instructing judges only toe examine whether or not there were reasonable grounds to refuse to disclose (section 51). Given the previous reluctance of the courts to interfere with the principles of ministerial responsibility, a minister’s “refusal” on an administrative matter such as this may constitute, by itself, reasonable grounds not to disclose. This could effectively rule out any meaningful appeal in the cases indicated in section 51 on the basis of either improper classification or that there was more benefit than harm to be gained from disclosure. If this is the case, there appears to be very little point of having a judicial review of these matters. It is most strongly recommended, therefore, that this section be deleted.

It is not clear either that the other section authorizing judicial review (section 50) would provide the sort of review that we have e argued for. The empowering phrase in this section, “the Court shall [disclose], if it rules that the head of the institution is not entitled to refuse”, is too ambiguous and it is, thus, not clear precisely on what basis a judge may overturn a decision to withhold information. For instance, does this mean that a judge may disclose information through applying a harms test, as we have suggested, or does it simply mean that refusal to permit access is “entitled” if the information falls under one of the exempt categories? If the wording is meant to apply only in the latter case, we have argued this is not a sufficient review. This wording, then, should be clarified to indicate that disclosure should be permitted, where appropriate, in either case.

k) The transition period

Under section 28, records two years old or more when the Act comes into force could be kept secret for an additional two years; records that were five years old could be kept secret for another five years.

What is the justification for such a long transition period? Presumably each institution may have to adjust so as to comply with the requirements of the Act by allocating resources to meet requests for access. Some of this adjustment could be made by making anticipatory changes in administration after the Act has been passed but before it came in effect. Some forecasts could also be made for information demand from the amount of requests for access that had been received in the past. Forecasts could, however, fail to be accurate in some cases, and there might be delays. This is not reason, through, for a broad transition period suspending the effect of the Act for up to five years in some cases. In addition, such a transition period may lead to the charge that the government will use this time to “launder” its documents. Finally, since section 9 provides from extensions of the time limit where consultations are required or where searches must be made through large numbers of records, the rationale for such a large transition period, or for any transition period at all, is significantly weakened. It is strongly recommended, therefore, that all documents should come under the force of the Act within one year after its coming into force: by giving institutions more time to adjust, more time will be taken.

Summary of BCCLA recommendations on the
proposed access to information legislation (Bill C-43)

  1. The schedule pursuant to section 3 should be extended to include all government institutions, Crown corporations, and regulatory bodies in an appropriate category for either exempt or non-exempt institutions.
  2. Crown corporations and regulatory bodies should be subject to the same sorts of disclosure requirements as any other arm of government.
  3. Section 4 should be expanded so that all foreign individuals and corporations may have access to government information.
  4. The indices to information should be required to be presented in a clear, straightforward manner so that they may be easily understood by those seeking access; the information Commissioner should be empowered to see that a standard is maintained in this regard (section 5).
  5. Applications for and official receipt of requests for access should be made at the Post Office (section 6).
  6. In the case of approved requests for access, government institutions should be required to convey requested materials “promptly” (section 7).
  7. All extensions to the initial 30 day processing period should require the approval of the Information Commissioner.
  8. The circumstances under which refusal to indicate whether or not a document exists should be prescribed more clearly (section 10(2)).
  9. No one should be refused access due to financial inability to pay fees (section 11).
  10. The exemption on information that may be injurious to the conduct of federal–provincial affairs, section 14, should be deleted.
  11. The part of section 15(2)f stating “activities threatening the safety of Canadians” should be deleted.
  12. Section 16(1)c should be deleted; section 16(1) a and b are too broad and require further specification so that information is not withheld unnecessarily.
  13. Section 20(1)b should be deleted as section 20(1) c and d provide sufficient protection for information included under this provision; section 20(2) should be deleted.
  14. Delete section 21(1)b; further consideration should be given to permitting access to more factual information under section 21 that does not include the specific deliberations of Cabinet; records in section 21 should be exempt for ten years.
  15. A limit should be placed on the amount of time the Information Commissioner may take to respond to appeals.
  16. Full judicial review should be available in all cases where there is a dispute about access. To facilitate this, section 51 should be deleted and section 50 should be amended to clarify that full review is intended by this section. Other amendments should be made, where indicated, to show that full review is permitted of decisions not to disclose.
  17. All records should come under the jurisdiction of this legislation within one years after its being brought into effect.
  18. The circumstances under which information can be withheld that contains advice or recommendations developed by or for a Minster or a government institution should be more clearly prescribed so that information is not withheld unnecessarily (section 22(1)a).