Submissions Received by the Task Force

Full Submission

From: Canadian Historical Association (CHA)
Sent: June 1, 2001

Introduction
The Canadian Historical Association/ Société historique du Canada (CHA/SHC), founded in 1922, is a fully bilingual, national organization dedicated to research and scholarship in all fields of history. The CHA/SHC represents more than 1000 members, including professional historians, teachers, graduate students and individuals interested in researching, writing, teaching or otherwise knowing about Canada. On behalf of its members, the CHA/SHC undertakes a vigorous publication program; lobbies governments, archives and museums on issues relating to the preservation and availability of historical records; organizes an annual scholarly conference for historians from across the country and abroad; and offers prizes which recognize and promote excellence in historical scholarship.

The CHA/SHC believes that access to information is essential to the existence of a democratic society, and that restrictions to access should only be entertained when it is clear that the release of information would provide a serious threat to the national interest or constitute a clear assault on the privacy rights of individuals concerned. Access to information is also essential for historians who are interested in recreating a credible history of the country's past, and to those interested in ensuring that governments are accountable to the people who elected them.

The historical enterprise and the functioning of a democratic polity are fostered by a spirit of openness and transparency, and require strong legislative protection of access rights. Although the 1982 Access to Information Act provided a system for ensuring that access to information rights were respected, it is our view that the time has come for a comprehensive parliamentary review of the existing legislation. We also call for a significant augmentation of the authority of the Information Commissioner to ensure that the intent of the Act is not undermined as a result of intransigence, disorganization, or attempts by government departments to avoid critical scrutiny.

Reform of the existing Access to Information Act is also required as public debates about rights of privacy, and the closure of the historic census, swirl about us. At present, the Information Commissioner is locked in a confrontation with both the Government and the Privacy Commissioner: that makes it virtually impossible to carry out his responsibilities under
the Act. According to the Privacy Commissioner, privacy rights are superior to rights of access to information. Such a view, however, has no legal underpinning. The CHA/SHC has argued instead that an appropriate balance must be struck between the rights of privacy and the rights of access. Without appropriate amendments to the existing access legislation, however, establishing such a balance will likely become more difficult in the future.

One need only look at the current impasse regarding access to the historic census, to see how far the pendulum has swung in the direction of privacy. Obviously, individual privacy rights need protection, but not at the expense of access to material that is essential to the reconstruction of our historic and ancestral past. Although we recognize that the issue of the historic census is
not explicitly referred to in the Terms of Reference for the Access to Information Review Task Force, it is an issue of extreme importance to the country's historical and genealogical communities. In his press release of December 15, 2000, Minister of Industry Brian Tobin assured Canadians that the census question required "further broad based consultation," and that it would "take place as part of the already begun administrative and legislative review of the Access to Information and Privacy Acts". We would urge the Task Force to take whatever steps it can to ensure that access rights to the historic census are protected, and to protect against the possibility that census records might be destroyed at any future date.

General Principles:
At its June, 2000 council meeting the CHA/SHC endorsed the following set of resolutions relating to Access to Information.

1) that the CHA/SHC supports a comprehensive review of the 1982 Access to Information Act
2) that amendments to the existing legislation should be directed at facilitating and encouraging access to information and openness in government, both of which are essential components of a democratic society .
3) that firm procedures be established to discourage government departments from lengthy delays in responding to access requests
4) that service fees be maintained at existing levels
5) that careful attention be given to the creation, indexing, maintenance, preservation and disposal of government records
6) that effective procedures be developed to address information management and access matters involving electronic communication

Recommendations for Amendment of the Access to Information Act

1. Strengthening the authority of the Information Commissioner.

It is the view of the CHA/SHC that the Information Commissioner needs greater authority to ensure compliance with the provisions of the Access to Information Act, and to protect against excessive delays in responding to requests. At present he has no significant punitive powers beyond public comment upon the performance of government departments and officials. In our view, Sections 30-40 of the existing act should be amended to provide more independence for the Information Commissioner, and include penalties for non-compliance.

2. Expanding the scope of the Act.

We believe that the scope of the Act should be expanded to include all or most federal departments, crown corporations and agencies. At present some agencies are exempted, while others are not; there seems no clear rationale for why this should be the case. It is our view that the attached schedule of departments and agencies subject to the act should be the same as that for the Privacy Act (which is much broader) and the National Archives Act. Given their inter- relatedness we believe that the three Acts should have the exact breadth of coverage.

The scope of the Act should also be expanded to include official documents held in private manuscript collections, or at the very least, in Prime Ministerial Manuscript Groups held at the National Archives.

3. Passage of Time Clause

We strongly recommend the introduction of a passage of time clause, requiring that all government records should be released by their creating department or the National Archives twenty-five (25) years after their creation. If there are rare exceptions, e.g. aspects of national security records, and even rarer commercial confidential information and personal privacy records, these should be justified for continued closure on a case-by-case basis made before the Information Commissioner, who would rule on their validity, subject to appeal to the courts. The CHA would strongly oppose continuing, open-ended, blanket exemptions to such a clause

An effective passage of time clause, morever, would replace the labour intensive and inefficient case-by-case review process that now obtains, and which is a drain on the resources of the National Archives. It would help in turn to reduce the present huge backlogs slated for detailed access reviews.

4. Improving Information Management Procedures.

The CHA/SHC has long been on record in support of improvements in the area of information management and the proper handling of records. In his letter to the Information Commissioner of 25 September, 1999, past President Irving Abella noted the CHA 's vital interest in the orderly creation, indexing, management, preservation, and disposal of government records. In a subsequent letter to the Information Commissioner of 7 November, 2000, Dr. Colin Howell expressed the CHA' s concerns about the poor state of information management practices in the federal government and deplored the inefficiencies and poor service that plague the access to information system.

Ineffective records management procedures lead to considerable inefficiencies and to time-wasted in searching for requested materials, In addition, we have real concerns that valuable items have been disposed of because those making decisions are unaware of the historical significance of the material concerned. Reports that RCMP photographs and audio- visual records have been removed and destroyed, and that the RCMP file on W.E.B. Dubois is missing, for example, do little to Inspire confidence that existing information management practices are satisfactory.

In addition, the changes that have accompanied the electronic revolution, make it necessary that effective procedures relating to management of and access to electronic communication be established. E-mails, file attachments, and other electronic communications are easily deleted, and hence lost to public access and scrutiny.

We would also like to emphasize the non-discretionary authority of the National Archivist in the National Archives of Canada Act (1987) to control all disposal and destruction of all government records in any medium, and to conduct the archival appraisal first before any such destruction takes place -again of all records in any medium including the new electronic ones -to determine which records have "archival and historical value". This is a vital element of any reformed government information management regime. In exchanges of letters with the National Archivist, Information Commissioner Reid has formally recognized that this is a vital part of an effective access to information system. Illegal or ill informed records destruction obviously destroys the right of access for citizens. Conversely, the survival of mountains of useless records would cripple any descriptive and retrieval system for bureaucrats and researchers alike. Clearly, a revitalized information management system must involve a partnership involving Treasury Board, the Information Commissioner and the National Archives.

Access to Historic Census

While all issues relating to access to information concern us as, historians, no issue is more important to us that of access to the historic census. The CHA endorses the Report of the Expert Panel on Access to Historic Census, released last summer. This Report grew out of a commitment in the fall of 1999 made by then Minister of Industry, John Manley, to resolve the census impasse by striking an expert panel. The Panel's report carefully balanced rights of privacy with recognition of the indispensability of the census in the interpretation of our history as a nation. The Report found that the procedure enshrined in the Privacy Act of 1983, making census data available to the public after a 92-year waiting period, provides fair protection for privacy rights and conforms in general with the practice of those countries considered benchmarks for Canada. (The United States and Great Britain).

The response of the Government has been to ignore the Report and to follow instead the argument of the Chief Statistician and Privacy Commissioner, that assurances of confidentiality in the past must be maintained in perpetuity. Yet the Expert Panel pointed out that there is no evidence to suggest that these assurances represented a perpetual guarantee of privacy. Rather, there was "evidence of the intent to preserve this information for future generations." Indeed, instructions to enumerators encouraged them to be careful because these records would be stored at the Dominion Archives. After reviewing all the evidence, the Expert Panel found "no convincing evidence that Parliament intended to create perpetual confidentiality.

We ask the Task Force to take note of the continuing impasse over the census, and that it urge the Government to follow the recommendations of the Expert Panel. In our view, the census question is one of the most crucial access-to-information issues facing us at this time. Given Mr. Tobin's promise that the issue would be raised in conjunction with the review of the Access to Information Act, we urge the Task Force to address ways in which access to census for purposes of historical and ancestral research might be facilitated.

Balancing Rights of Access to Information with Privacy Rights

As stated earlier, the CHA believes in the need to strike a balance between rights of access and rights of privacy. We are very concerned, however, that over the past while the privacy lobby has taken the position that privacy rights over-ride rights relating to access to information. For this reason we feel that the existing Access to Information Act needs to be strengthened. We are convinced that access rights are as important to the maintenance of a free society as other rights, including the right to free speech, association, and privacy. Surely our fundamental freedoms are best understood as inter-related and symbiotic, rather than in conflict with each other. Is not freedom of speech compromised, when we are denied access to information that allows us to speak the truth? And so, as advocates of greater protection of privacy rights make their case, it is important that their demands for protection do not come at the expense of rights of access. In our view, the present conflict over issues relating to access and privacy (including the current census impasse and disputes relating to the authority of the Information Commissioner) suggests the need to vigorously defend access rights. The CHA thus calls for a comprehensive parliamentary review of the existing Access to Information Act in the hope that those rights might be better protected and even enhanced.

Executive Summary

The foregoing brief presented six general principles endorsed by the Canadian Historical Association with respect to access to inforn1ation. It made further suggestions for changes to the Access to Inforn1ation Act. The brief argues the necessity for striking a balance between the rights of access and the rights of privacy, stresses the importance of resolving the impasse relating to the census, expresses our continuing concerns relating to existing inforn1ation management practices and poor service to the public, and calls for the augmentation of the Inforn1ation Commissioner's authority so that access rights might be better protected.

The CHA endorses the following principles:

a) that a comprehensive parliamentary review of the 1982 Access to Information Act is necessary
b) that amendments to the existing legislation should be directed at facilitating and encouraging access to information and openness in government, both of which are essential components of a democratic society
c) that firm procedures be established to discourage government departments from lengthy delays in responding to access requests d) that service fees be maintained at existing levels
e) that careful attention be given to the creation, indexing, maintenance, preservation and disposal of government records
f) that effective procedures be developed to address information management and access matters involving electronic communication

In addition to these general principles, the CHA recommends:

a) strengthening the authority and independence of the Information Commissioner b) expanding the scope of the act
c) introducing a 25 year passage of time clause d) maintaining service fees at the existing level
e) endorsement by the Task Force of the Report of the Expert Panel on Access to Historic Census materials

Submissions Received by the Task Force