Access to Information Act needs major revamp

Proposed bill won’t fix broken system, Tom Henheffer and Tom Mendel write.

Last Thursday was International Right to Know Day, a date when groups around the world celebrate the importance of freedom of information to both democracy and good governance. Yet there is little to celebrate in Canada. Canada’s access to information system is broken, putting at risk citizens’ fundamental right to hold their government accountable.

The Access to Information Act (ATIA), now nearly 35 years old, is in desperate need of major reforms to reduce delays and provide for an effective right to access information held by public authorities. This challenge calls for bold and thorough reforms to align it with international standards and better practice in other countries.

Unfortunately, the federal government’s proposed ATIA reform, Bill C-58, comprehensively fails to meet this challenge.

This long-awaited bill fails to address a number of serious problems in the act. This includes the vastly over-broad regime of exceptions, the broad discretion of public authorities to delay in responding to requests, the absence of any duty for public authorities to document important decision-making processes, and the limited scope of coverage of the act.

In some areas, it even weakens the rules, such as a dangerous new provision giving government departments the right to ignore information requests that they deem to be “frivolous or vexatious.”

Canada is ranked a dismal 49th out of 111 countries on the RTI Rating, a global methodology for assessing the strength of a country’s legal framework for the right to information (RTI). Bill C-58 would only lift Canada three positions to 46th globally, according to an analysis by the Centre for Law and Democracy (CLD).

We can and must do better. A healthy and effective access to information system is critical to free expression, public participation and holding government to account. By introducing legislation of such inadequacy, the government is failing these basic values.

We call for Bill C-58 to be scrapped, and government officials to be tasked with crafting a bill that takes seriously the crisis undermining our right to know. The resulting bill must, at bare minimum, deliver on the promise to expand the scope of the act to cover the Office of the Prime Minister and ministers’ offices by allowing individuals to make requests for information from these bodies, as they may do with other public authorities.

The government must also introduce a formal duty to document for public officials, and require them to preserve records of their decision making, and put in place a robust system for limiting the discretion of public authorities to extend the time limits for responding to requests. It should also formalize in law the fee waivers contained in the May 2016 Interim Directive on the Administration of the Access to Information Act.

Finally, and most crucially, the government must ensure that exceptions and exclusions to the right of access are narrowly defined and subject to both a test of actual harm and a mandatory public interest override.

The public has the right to obtain the information it needs to participate meaningfully in the democratic process, while also holding Canada’s public officials and MPs accountable.

The system fails to meet minimum standards, and Bill C-58 won’t fix it. The government should withdraw it and present Canadians with a bill that addresses seriously the broken access to information system.

Tom Henheffer is with Canadian Journalists for Free Expression and Tom Mendel is with the Centre for Law and Democracy. This column is supported by several other co-signers, including the Canadian Association of Journalists.