In her latest Annual Report the Information Commissioner, Suzanne Legault , expressed her frustrations and hopes with respect to greater, and more timely, government information transparency. She said, in part:
“More than ever, I believe the way forward must include the review and modernization of Canada’s access legislation. This statement has been reiterated countless times in Canada and in international studies. Developed in the pre-digital era, the Act is out of touch with today’s information technology, common practices and expectations. It is out of step with more progressive standards adopted by other jurisdictions. Throughout the year, our investigative work revealed various legislative deficiencies and impediments, some of which are documented in our reports to Parliament. I intend to further analyze the shortcomings of the current legislation to offer parliamentarians an in-depth review of necessary amendments.”
In my view, despite the valiant efforts of oversight agencies, there is a systemic discrimination in our access to information regime. This is to say that the very nature of our system -rather than the just specific acts or omissions of politicians, mandarins or technicians – disadvantages the resident who seeks knowledge to make informed decisions about government. This, in turn, enhances the power of governments, including our own, that seek to control and conceal the currency of democracy.
The 1983 Access to information Act and related regulations were fashioned to create a presumption in favour of the public’s acquiring the government information that it sought. And clearly the legislation represented a fundamental shift compared to the previous regime of closed bureaucratic and political doors.
Unfortunately this quantum leap occurred in an era where there remained much uneasiness within the Public Service about various adverse consequences of disclosure.
Principally in areas such as protection of privacy, security, government relations, the policy-making process, cabinet secrecy and the preservation of effective business relationships, the brakes were applied to the anticipated steam of releases.
This application of exemptions and exceptions, despite statutory language intended to err on the side of disclosure, has created an enormous industry surrounding the vetting of millions of records and the resolution of disputes regarding release decisions. The delays, the expense and the resource crush inherent to this situation have been exacerbated by a number of other factors, such as:
- the increasing skill of departments at manipulating the meaning of exemptions and exceptions to create and to excuse delays
- the feebleness of legislative recourses and government will when it comes to sanctioning delay
- the very real expense of providing access review sufficient to meet the demand
No improvement is in sight. In fact the growth of technology has made matters increasingly worse. Armed with the tools of the information age, requesters have been able to identify information that they seek much more quickly and in far greater quantity. At the same time, the digital revolution has shortened the shelf life of information – its relevance to current political or other issues of importance to Canadians.
The result: in many cases it takes longer to get information than the useful time frame of the records. Accordingly, government can conceal blemishes far more successfully and a chilling effect is occurring for a public that is already somewhat jaded with respect to the integrity of the state.
The solution? I believe Madame Legault sets the direction when she refers to the “legislative deficiencies and impediments” that Parliament must address. I hope, though, that she is referring to the forest and not the trees. The need is for comprehensive reform, not line amendment.
As with many of our regulatory statutes a source of great frustration is the mass of rules that surround access legislation, policy and procedures – rules that thwart the objectives of the legislation by permitting detours through a growing minefield of interpretations , equivocations and downright scams.
What we need in my view is a kind of “flat tax” in access, analogous to the system advocated by some tax reform proponents but applied to what the government owes us. We need an access system with a limited number of exceptions that apply only for as long as they are necessary. Moreover, we need independent administrative oversight with teeth – able to countermand breaches of law and ethics with dispatch.
The watchword must no longer be a presumption in favour of disclosure, subject to a number of broad exceptions and rationales for delay. Rather it should be an immediate release of information that is requested unless concealment can be justified by a very limited number of exceptions – and even then only for as long as concealment is of any demonstrable value. In fact most information should be provided for public use as soon as it is created on government websites. The Information Commissioner would have the real authority to resolve disputes in a summary fashion.
No doubt the debate would be lively on the nature of exceptions and how long they should be allowed to persist – but at least there would be a debate in lieu of the creeping arthritis of the status quo.
In an income tax context, it may be that this vehicle won’t address the weight and loopholes of our statute unless it somehow ensures that all income groups will pay according to their means. In a government transparency context, however, I think it is the only way to break the colossal enertia that we are currently enduring.