Observations reçues par le Groupe d'étude

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Auteur : Robert Bothwell et Patricia McMahon
Envoyé : le 1er juin 2001

1. Context
The Access to Information Act of 1983 was the product of worthy intentions. It was an attempt to respond to perceptions of government secretiveness, and it drew much of its support from the general suspicion of government that followed from Vietnam, the Pentagon Papers, and Watergate. It was, therefore, part of a larger cultural phenomenon that looked to the United States for example and inspiration, and it was not surprising that it adopted an American-style solution, based on the Freedom of Information Act (FOIA).

The stipulations of the Canadian Act came as an unpleasant surprise to those historians working in the (relatively) recent Canadian past. Since Bothwell was one of the breed, he can speak with some certainty as to what happened. Until the act, we could rely on the 30-year rule and every year on January 1 a new range of information would drop onto our desks. Bothwell worked mostly in Finance and External Affairs documents and he enjoyed the fact that the Canadian archives regime was one of the most liberal (and at the time most practical) in the world. Few indeed were the files forbidden to us - material relating to the Royal Family was one exception and there may have been a few others. The files that came to Bothwell were complete, as the last file clerk had left them when they went to dead storage.

The Access Act purported to open up material more recent than 30 years but it imposed a series of conditions, including national security and federal-provincial relations. At the time we were told that nothing already opened would be closed, but that assurance proved to be false. For example, the minutes of the Imperial Conference of 1923 (of the vanished British Empire) immediately became security-sensitive. After all there were other Governments there and what their premiers said was "communication from another government." To take another more recent example, the cabinet minutes were carefully censored to remove any hint of federal-provincial controversy. The negotiations with British Columbia over the Columbia River Treaty were removed and as far as we know are still missing. WeI suggest the Committee call up the 1961 cabinet minutes and see for yourselves. As you read them, perhaps you could murmur to yourselves - "forty years ago, forty years ago. And still sensitive!" So to answer your question, "what impact…?" the effect has been routinely to confront us with degraded and flawed information and to offer us a cumbersome and in practice extremely inconvenient remedy.

When we get to 1.2, "have citizens' needs and expectations changed," we should think the great problem is electronic data and how it is to be confronted. Working out a remedy for that is not a challenge restricted to the Access Act, but unless solved it could render the Act redundant.

As for 1.3, we think we've already answered it; under 1.4, we think that we should revert to a version of the thirty-year rule. At the time the Access Act was imposed, archivists were speculating about a twenty-five year limit, and we think that would be a good one. Indeed Bothwell has just returned from a visit to Washington where he ran into the beneficial effects of Bill Clinton's executive order demanding that federal institutions release materials earlier than 1975. Among other things, he was able to confirm interview information that the US wanted to cancel the Auto Pact in 1971-2 as "retaliation" against Canada. Try getting the same information out of Canadian documents. (Ha!) Granted, in this field Clinton's was a liberal administration and declassification (in this case of National Security Council documents) was applied in a liberal-minded way. We can doubtless expect much worse out of the administration of George W. Bush. (And Bush has not disappointed - consult the New York Times on the latest nuttiness out of the Energy Department - as bad an example as Clinton's executive order was good.) Nevertheless the Americans have however briefly shown that it can be done.

As to 1.5, we have no objection to a sliding scale. Those who ask for a million pages can presumably afford to pay for the mountain of xerox they create.

Under 1.6, the purpose clause expresses a noble intent that is unfulfillable in practice and is in fact contradicted by the details of the Act.

Finally, 1.7. The Act, itself flawed, requires a machinery that in practice cannot expeditiously or even intelligently determine how to apply the exemptions to access. A revised Act should, by re-applying a thirty- or twenty-five year rule, remove elderly "secrets" from routine review. That in itself would remove a bottleneck created by a corps of access officers who generally have little or no idea of the significance of the information that passes under their eyes and who in terms of expertise might just as well rely on the position of the hands of the clock in terms of their understanding of the information they deal with.

2: Scope of the Access to Information Act - Institutions
A major shortcoming of the current Access to Information Act is its narrow approach to institutional coverage. The current list freezes access to institutions in a particular moment in time. The Act must be flexible enough to accommodate changes in government activity and the evolution and creation of government institutions, but this is impossible given the confines of the present Act. The Act must also guarantee access to more than government institutions.

Instead of providing an exhaustive list of covered institutions, the Act ought to provide a general test for coverage: does the institution perform a government function? This would mean that any institution, tribunal, or agency that performs what can be considered a "government function" would be covered by the Access to Information Act. In this respect, the Act would build on the existing caselaw surrounding the application of the Canadian Charter of Rights and Freedoms. Any list should be included for purely illustrative purposes only.

The current approach is problematic in that it may preclude access to information about institutions that perform a government function but are not formally subject to the Act. To permit the government to create private institutions, thereby circumventing the Act, or to exclude institutions altogether undermines the integrity and purpose of the Act, namely, to facilitate access to government information and permit greater transparency in the functioning of government.

We oppose efforts to itemize which institutions are covered by the Act. Indeed, given that there is a presumption that individuals have access to government information, perhaps a better approach is for the government to specify which institutions are not covered by the Act. While there should be no exhaustive list of institutions, any list must be included in the regulations rather than legislation given that regulations are far less difficult to amend and update than legislation. However, neither approach addresses the concern that the legislature can too easily circumvent the Act as it is currently written.

3: Right of Access
The restriction of the right of access to Canadians and persons resident in Canada was an embarrassment and potentially a hazard to researchers. In the US or the UK I enjoy the same right of access as citizens of those countries, although I must admit I have no idea what might happen under the new UK legislation. I worried in 1983 and worry now what would happen if the Americans adopted the same blinkered approach as Canadians do - effectively the tarification of information. It is the information that is to be released, not the researcher. In any case, the remedy to such a limitation is obvious - hire somebody who is a Canadian or a resident to make the application. This is one clause that should go, and not before its time.

4: Scope of the Act - Information
While I appreciate the purpose underpinning the mandatory and discretionary exemptions, as well as the class and injury tests, each of these categories leaves far too much discretion to the individual clerks who are responsible for the day-to-day administration of the Act. While I was researching my doctoral dissertation in history, I ran into numerous problems with information requests pertaining to national security, international affairs, and national defence. While many of these areas are subject to a certain amount of discretion, it became quite clear that the practice if not policy of some members of the National Archives staff was to deny access to any and all requests in these areas and simply wait for an appeal. For graduate students and academics seeking access to documents, the appeals process is cumbersome, time-consuming, and expensive. More on this below.

The Access to Information Act should exempt only that information which may lead to an adverse result if it were to be disclosed. Furthermore, the burden of proof must be on the government to demonstrate why and how disclosure of such information might lead to harm. The presumption is that individuals have a right to government information. Currently, if information is withheld, it is impossible for individuals to explain why disclosure would not lead to harm because they do not know what the document or information actually entails. Given that the institution is in the best position to be able to explain why a failure to disclose is in the public interest, it is the government that must have the burden of proving why individuals cannot be permitted to have access to the information in question.

There are a number of problems with the current discretionary approach to the disclosure of information. First and foremost, as noted above, is the extraordinary amount of discretion given to first contact clerks to determine access to information. Those in charge of access to information must not have a vested interest in keeping information from researchers. For example, McMahon has made applications to see records contained in the RCMP files, and was quite surprised to see that the access officer was a retired RCMP officer who had worked on many of the files that she had requested. Although he reassured her that there was nothing noteworthy in the files that related to my research, it is clear that this sort of conflict of interest - real or perceived - undermines the process of accessing government information. Given the purpose of the legislation, the federal government should be required to employ a sufficient number of well-trained individuals who can intelligently determine why information cannot be subject to the regular requirements of disclosure. Failure to do so leaves the government in breach of its self-assigned obligation to facilitate access to information about its own activities.

At least the RCMP officer may have been knowledgeable about the material he was processing. It is just as bad and probably worse if the Access officer is not knowledgeable. Not understanding what is in front of him or her, the officer may default to reading the "top secret" label or noting that material relates to "British Columbia" or contains information about disagreements between Canada and the United States over Vietnam in 1956. So access is refused, and if the refusal is appealed the file goes back to the department for an opinion. Back in the department there isn't anybody who was around when the issue in question came up (though in some cases the deputy minister might once have been a junior witnessing the issue described). The file therefore sits, and when it has to be dealt with it goes to the most junior officer on the desk who is just about as knowledgeable as the poor Access officer. What is the safest course to take - please note, not the "best" course but the one that w ill make the problem go away? Obviously to refuse. Let the Information Commissioner deal with it, for by that time with any luck the junior officer will have been posted somewhere else.

There also needs to be more specific criteria in the legislation that would enable access officers to make more informed decisions about the disclosure of information. The current criteria are overly broad and too vague to be of assistance in determining what sort of information is disclosed. This leads to an arbitrary application of the Act, which seems to depend on which officer examines the records and who is requesting the information. This rather ad hoc approach to the disclosure of government information is inappropriate and contravenes the spirit of the Act.

All of this is to say that there ought to be a public interest test that governs all access to information under the Act, applicable to all provisions of the Act, not simply those pertaining to certain types of third party information. In this regard, perhaps a less categorical and more time-sensitive approach might make more sense. For example, the softwood lumber dispute between Canada and the United States has been a long-standing concern of the federal government. However, records on this matter will be subject to a number of categorical exemptions. Canadians have a right to know what their government has done about this matter, and historians should be able to have access to all related information. It might make more sense to allow a ten or twenty year exemption for this material, after which time anyone can have access to it. The same is true of litigation pursued by the government that would be exempt under solicitor-client privilege. Take, for example, the federal government's introduction of legislation to prohibit tobacco advertising. While it would be unfair and inappropriate for current litigation to be subject to the Access to Information Act, academics should be able to determine what steps the government took in order to develop its policies. The information would not be available for the purposes of litigation, but ten or twenty years after the litigation is complete scholars would be able to piece together, analyze and explain government strategy. If the purpose of the Access to Information Act is to facilitate government transparency, then government institutions and agencies have an obligation to release information to that end.

5: Access Process
We strenuously oppose any efforts to impose limits on access to information based on a categorical approach. The Act should not include numerical restrictions for the number of applications and individual or organization may make. Everyone should have the right to inquire about the workings of government institutions and agencies, and there should be no limits depending on the identity of the requester.

The government has every reason to be concerned about the expense of processing access to information requests. One potential solution is to relax the application of restrictions to government information. The Act has served to impede access to information in that many files and collections are now reviewed only when a request is made under the legislation. The problem with this approach is that a great deal of information that should be accessible is not.

The current process also transfers the financial burdens to the "consumers" of information in that the current $5 fee includes a measly five hours of research. Five hours may be no time at all for the review of classified documents; a small collection of detailed documents could take ten hours to review, while several boxes could be reviewed quite quickly in the same period. The current five-hour limit is an arbitrary one, one that does not serve the purpose of the Act. Furthermore, to offer five free hours of research is problematic in that it is impossible to know in advance how much time is required for access officials to review material in a thorough manner. Depending on the size of the collection under review, five hours may or may not be enough time.

Finally, it goes without saying that the entire handling of access requests under the Act should be an open process. If we urge greater transparency in government activities, it is only fair that the access to information requests themselves be subject to the same principles.

6: Redress Process
The current redress process is cumbersome, time-consuming, and expensive. The Federal Information Commissioner plays a valuable role in the process of information access in Canada. The problem is that it is difficult to reach the stage at which time the Commissioner enters the process. Instead, the Canadian government should consider an expert administrative tribunal that can deal with appeals in a timely and inexpensive fashion. For example, when out-of-town researchers are in Ottawa to secure access to documents, they do not have months to wait before being granted access to that information. A benefit of an expert tribunal system that meets in regular panels would be its expertise. The Access to Information Act and its provisions are complicated. It only makes sense to allow a body to apply its provisions on a regular basis. Not only would the decisions be made in a more informed and expeditious manner, but there would be a greater level of consistency in the application of the Act than is currently the case.

Your questionnaire asks about the clarity of the current process. It is true that the process is a rather muddy one. In our experience, it is difficult to find employees of the National Archives of Canada, for example, who are willing to explain the details of the Act to researchers or help them work through the complex process of access to information. Quite simply, there are very few people who make using the Access to Information Act less than a daunting experience.

The Consultation Paper makes reference to a "fast internal review mechanism." We cannot stress enough what an important mechanism this would be for researchers. Much like the tribunal proposed above, an internal review mechanism would expedite access while reducing the cost of the access to information process. While the Federal Court currently has limited powers of judicial review, access to the Courts is an expensive option, particularly when it is impossible to know whether the object of the access request will actually contain useful or relevant information.

On the subject of judicial review, the Federal Court should be given full powers of review so that all decisions, whether in relation to fees, time extensions, or any other access issues, may be subject to judicial scrutiny. This sort of access to judicial review will help to increase equal application of, and treatment under, the Access to Information Act.

Observations reçues par le Groupe d'étude