Ms. Legault’s problem is everybody’s problem

You may have seen the recent flurry of interviews with Information Commissioner Suzanne Legault concerning  Long Gun Registry records.

At first glance, it is easy to minimize this episode. Ms. Legault appears to be complaining that the Government was retroactively defeating her review of a 2011 access request seeking information on the Registry.  The Government had accomplished this with a few clauses in last week’s huge budget Bill that removed all registry information from the scope of the Information Act back to before the 2011 information request.

In its initial response to the Commissioner, the Government indicated that the “will of Parliament”, as set out in the “Ending the Long Gun Registry Act 2012” was to destroy all the gun registry information and therefore, necessarily, to permanently conceal it from public access. Accordingly, this should include any access by processes such as the Information Act under previously instituted reviews. Continued access to the registry information under the Information Act, in the Government’s view, was a technicality, a “loophole”, to be cleaned up in the omnibus budget legislation.

There has been support for the Government’s approach in the press and elsewhere. The opinion in these circles is that Parliament wanted the registry information destroyed and preserving the records for an old Information Commissioner investigation would defeat that purpose.

This approach belies a huge, ugly precedent that has been created by the Government’s manoeuvre.

The right of access to government information has been recognized time after time as a quasi-constitutional right.  It provides the individual the unfettered access to government information, that is essential to a democracy.

The Courts have held that, as a kind of constitutional right, albeit not specifically set out in the Charter, access to information must be afforded some degree of priority even over majority sentiment or legislation. Just as, for example, freedom of speech cannot be restricted at the whim of the legislator, access to information deserves some protection from that whim.

In order to protect the right to access, democratic states have created agencies with the authority to review requests, to support valid requests and to enforce legitimate access.

The hallmark of these agencies is that they must have the authority to require access, or at least to provide informed recommendations on access, even when this runs counter to the wishes of the government of the day. In other words, it is a necessary incident of the quasi-constitutional powers of access commissioners that they cannot be swept aside by a stroke of the government’s pen – or by the fine print of a majority government enactment.

At this point I strongly recommend that readers go to the Special Report and related documents produced by the Commissioner on her site ( OIC-CI.gc.ca). In particular, Appendix 2 to the Report is helpful. It is clear that, long before the “will of Parliament” was stated by passage of the legislation ending the gun registry, a legitimate request for information had been made and that there were significant problems with the RCMP response. The Information Commissioner was reviewing the complaint and even took the precaution of consulting the Minister of Public Safety for reassurance that she would have access to the information despite the implementation of the legislation ending the registry. The Minister assured her that the records would be preserved for her purposes.

Then, the government dealt with this loop-hole.

The result is that a legitimate, quasi-constitutional investigation has been thwarted because the subject matter of the investigation has disappeared. This has happened because the Government has used its majority to eliminate that subject matter.

And there’s the rub. The ability of the majority to erase the record, in effect to change history, to protect itself against criticism, makes a mockery of the right of access. It permits government to deny public scrutiny of its actions at a whim.

That this denial purports to be grounded in the legislative objective of removing the information does not lead to the conclusion that the Commissioner’s authority should be ousted. The information was properly before the Commissioner at the time of the request for the information. To deny her access for the purpose of an appropriate investigative function would be wrong.  Such an action could foreclose findings on the appropriateness of how the Government dealt with information -a core function of a freedom of information commissioner.

A precedent which Ms. Legault describes as “perilous” is permitted.

The paradigm would be as follows:

1. Government doesn’t want oversight to reveal embarrassing details.

2. Government uses its majority to legislate away the potential embarrassment by retroactively eliminating the oversight.

If this precedent persists, then the capacity of the individual, the minority, to exercise a fundamental right will be indeed imperilled.

This goes beyond guns. The potential target is much larger..

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