Access to Information: Making it Work for Canadians

Report of the Access to Information Review Task Force

Chapter 1 - Starting with the Basics: Access
Principles and the Right of Access

The first step in reviewing the Access to Information Act and its application is to examine the underlying principles and goals to determine whether they continue to reflect the interests of Canadians and Canadian society. Access principles should instil a notion of public trust, and respect the public interest, by encouraging the greatest degree of openness

and transparency while taking into account legitimate concerns such as personal privacy, commercial confidentiality, and intergovernmental affairs.

The rationale for access to information legislation was recognized in the Government’s 1977 Green Paper¹ on public access to government documents which concluded that:

• effective accountability - the public’s judgment of choices taken by government - depends on knowing the information and options available to the decision-makers;
  
  
• government documents often contain information vital to the effective participation of citizens and organizations in government decision-making; and
  
  
• government has become the single most important storehouse of information about our society, information that is developed at public expense so should be publicly available wherever possible.

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Access Principles and the Purpose Clause

Parliament chose to enshrine the principle of the right of access to information in the Act. The purpose clause in Section 2 provides guidance to the courts in interpreting the Act and to public servants in applying it.

Section 2 sets out a right of access to government-held information in accordance with the following principles:

• government information should be available to the public;
  
  
• necessary exceptions to the right of access should be limited and specific; and
  
  
• decisions on the disclosure of government information should be reviewed independently of government.

The section also provides that the Act is intended to complement existing procedures for access, and not to limit access to information that is normally available to the public.

The courts have consistently referred to the purpose clause in interpreting the Act.

The 1986 Parliamentary Committee did not recommend any change to the access principles described in Section 2. However, the Committee did recommend that the Act mandate the Treasury Board Secretariat and the Information Commissioner to educate both the general public and public servants about access principles.

Throughout our consultations, we found that most stakeholders, members of the general public, and public servants were not aware of the principles set out in the Act. However, once they were made aware of them, they concluded that these principles are the right ones and as relevant for the future as they were 20 years ago.

It is our view that this lack of knowledge or understanding of access principles can adversely effect how the Act is interpreted and applied. We therefore agree with the Parliamentary Committee that the existence of the purpose clause and the principles it represents should be better communicated both to the general public and public servants.

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Right of Access.

Related to the principles of accountability and public participation underlying the Act is who can apply for access to information held by the Government of Canada. It is our view that the scope of the right of access should be re-examined in light of our increasingly globalized world.

Section 4 of the Act gives Canadian citizens and permanent residents a right of access to records under the control of a government institution. It also empowers the Governor in Council to extend this right to others. In 1989, the government did extend access rights to all individuals and incorporated entities present in the country. The right of access of the requester is verified in each case before a request is processed (e.g. by return mailing address).

Should there be any geographic restriction on the right of access?

It can be argued that extending rights to non-Canadians outside the country is unlikely to contribute to the underlying objectives of access to information, namely, promoting the accountability of the Government of Canada and

increasing Canadians’ participation in the development of government policy. Extending the right of access to information might also impose additional costs on Canadian taxpayers.

On the other hand:

• with increasing globalization, more and more records about an issue will be located in more than one country and researchers will have to get them from all jurisdictions to compile a complete picture;
  
  
• individuals and organizations outside Canada can have a legitimate interest in Canadian government records, just as Canadians can have a legitimate interest in information held by other governments;
  
  
• freedom of information legislation in most other jurisdictions, including the United States, provides a universal right of access and Canadians can, and do, apply to these jurisdictions for information;
  
  
• individuals and organizations outside Canada currently circumvent the restriction by getting a person in Canada to make an access to information request on their behalf; and
  
  
• the existing restriction impedes the government from moving to a system of electronic access to information, where requests could be made and responded to electronically, as it would be very difficult to determine the requester’s location.

As long ago as 1986, the Parliamentary Committee recommended that any natural or legal person become eligible to apply for access to records under the Act. Given our increasingly interconnected world and the less restrictive approaches in other jurisdictions, the Task Force is of the view that the requirement that the requester be present in Canada is probably not sustainable, at least over the longer term.

Jurisdictions with no restriction, such as the United States, have reported that foreign requests have not had a significant impact on either the volume or size of requests. They believe the only difference is that requests from abroad can be made directly, instead of through a domestic agent. There is no reason to believe the impact of lifting restrictions would be any different in Canada. However, departments with an internationally-focused mandate may be apprehensive about the impact of such a change on their operations. Further work could be undertaken with those departments to assess any probable impact, and how it could be managed.

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Conclusion

The purpose clause in Section 2 remains valid but needs to be better communicated, both to the general public and public servants.

Further discussions should be held with departments most likely to be affected by expanding the right of access to “any person”. However, we agree with a number of stakeholders that it is time the Act was modernized to provide a universal right of access.

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¹The Honourable John Roberts, Secretary of State, Legislation on Public Access to Government Documents, (Green Paper) (Minister of Supply and Services Canada, 1977).