“What I see, which is of primary concern, is a lack of respect for the legal obligations in the act in terms of responding in time under the legislation. That is our biggest issue at the federal level, right now,” Ms. Legault told The Hill Times last week in a phone interview following the release of a consensus resolution by the country’s information and privacy commissioners at the Privacy and Access 20/20 Conference in Vancouver.
Federal, provincial, and territorial commissioners produced a consensus statement calling on all levels of government to bring Canadian access and privacy laws into the 21st century and re-establish Canada as a world leader in access and privacy legislation.
The group’s recommendations included strengthening commissioners’ monitoring and enforcement powers for legislative non-compliance; extending the application of legislation to the legislative and executive branches of government; creating a public interest override on exempt records; improving the process for appealing the denial of disclosure by government departments; and establishing minimum standards for proactive disclosure by departments.
Ms. Legault has become increasingly vocal in pressing for reforms to the federal Access to Information Act, which enshrines the right of citizens to request the public disclosure of government records.
Parliament and Parliamentarians are currently exempt from the federal Access to Information Act, but Ms. Legault has been calling for this to change.
Earlier this year she also called out the RCMP for failing to even acknowledge the receipt of access requests.
“Canadians have to voice their concerns to Parliamentarians, but it really is up to the government and legislature to actually amend this legislation, not just at the federal level but across Canada,” the commissioner said.
The commissioner will table her office’s annual report for 2012-2013 in October following the resumption of Parliament, and later this year she will submit another report detailing recommendations for the modernization of the federal act.
She declined to comment on the substance of her forthcoming reports, but said that there was agreement among her counterparts that timeliness of processing requests and penalties for noncompliance needed to be addressed.
Introduced in 1983, the federal Access to Information Act has failed to keep up with changes in communications technology and government over the last three decades. Canada recently placed 56th in the world when it comes to access to information legislation. According to recently-released access law rankings by the Centre for Law and Democracy and Right to !Nfo, Serbia, Slovenia, and India are the top three countries for public disclosure. The U.S. placed 42nd and the U.K. 26th.
The information commissioner will also release a report based on her office’s investigation into the use of pin-to-pin messaging by government officials, and another into alleged political interference in the access to information process at Public Works and Government Services, before the end of the year.
On average, federal departments and agencies received 39,996 Access to Information requests annually over the last three years, while the Office of the Information Commissioner has received an annual average of over 2,150 complaints over the same time.
Mike Larsen, a professor of criminology specializing in access to information legislation at British Columbia’s Kwantlen Polytechnic University, was particularly critical of the increasingly common use of the Cabinet confidence clause to deny the public disclosure of records. He called Cabinet confidences “a huge exemption clause.”
“They’re not subject to a public interest override, so you can’t get Cabinet confidences through the Access to Information Act,” said Prof. Larsen, co-editor of Brokering Access: Power, Politics, and Freedom of Information Process in Canada. “Other jurisdictions don’t have that kind of situation. There is a capacity for an information commissioner to review information and make a decision on a public interest override.”
He identified the lack of timelines as another problem with the current federal legislation. Under the act, departments and agencies are able to postpone disclosure for “a reasonable time period” beyond the initial 30-day time limit. Requests can frequently take three months to process, but a department can use other parts of the legislation to indefinitely prolong the disclosure process.
Prof. Larsen suggested that a maximum time limit be introduced to strengthen the act.
Another troubling trend that Prof. Larsen identified was the emergence of so-called “oral government,” where officials have deliberately undocumented discussions to evade the act.
CBC reporter Greg Weston recently reported that 23 requests for Privy Council Office documents related to the ongoing Senate expenses scandal produced zero records.
“Other jurisdictions outside of Canada have provisions in their access to information laws that require governments to produce records when they’re doing any kind of consequential public work, and we don’t have strong provisions for that in Canada,” Prof. Larsen said. “We’re running into a situation where people simply aren’t keeping records that they should be keeping.”
According to the information commissioner, the percentage of missing records complaints to her office has increased from 19 to 34 per cent compared to this time last year.
“That’s a huge jump and I’m seriously concerned about it,” Ms. Legault told The Hill Times. “Once this year is over and we’ve investigated some of those, we’ll be in a better position to assess what’s going on.”
The Conservative government was first elected in 2006 on a platform that included increasing transparency and accountability in government following the Liberal sponsorship scandal, but the access to information process has deteriorated since then.
Ms. Legault said that one of the biggest problems is that most agencies and departments lack the capacity to deal with the large volume of requests.
“Minister Clement has said publicly that there’s been a large increase in requests and they’re doing their best. I’m saying this is a quasi-constitutional piece of legislation that deals with Canadians’ fundamental democratic rights. It’s not enough to do your best, you have to do what’s legally required,” she said.
“That’s the obligation under the law. So if the requests are increasing — which they are — then the capacity has to increase as well, and that’s where there is a huge lack,”
Ms. Legault said.
The Hill Times contacted the office of Treasury Board President Tony Clement (Parry Sound-Muskoka, Ont.), the minister responsible for the Access to Information Act, to discuss the Conservative government’s transparency record. Mr. Clement was unavailable for an interview but in an attributed email response he stated that the government would consider the information commissioner’s forthcoming recommendations.
“The commissioner has stated her intention to bring forward recommendations on how to strengthen the ATIA this fall and we look forward to reviewing them,” the statement read.
Mr. Clement also pointed out that the Conservatives had expanded coverage of the Access to Information Act to 250 institutions through the Federal Accountability Act and processed a record number of Access to Information Requests during their time in government.
“This government has both received and responded to more ATI requests than any previous government — 43,664 in 2011-12 alone,” stated Mr. Clement, who has advocated for greater disclosure of government data through his department’s Open Government initiative.
But NDP MP Charlie Angus (Timmins-James Bay, Ont.), his party’s ethics and access to information critic and frequent sparring partner of Mr. Clement during Question Period, disputed the Treasury Board President’s claim that government transparency had improved under the Conservatives.
“What we’ve seen with this government is a smoke-and-mirrors Tony Clement hokum show talking about data sets and just a whole mishmash of terms,” Mr. Angus said. “Protecting the privacy rights of citizens and ensuring openness for government are fundamental to a functioning democracy, but the Harper government has put this principle on its head. They have absolute protection for the secrecy of ministers, while playing loosey-goosey with the privacy interests of citizens.”
Original Article
Source: hilltimes.com
Author: Chris Plecash
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