Observations reçues par le Groupe d'étude

Soumission complète

Auteur : David Cozac, gestionnaire de programmes, Canadian Journalists for Free Expression
Envoyé : le 1er juin 2001

(Soumis en anglais seulement.)

Introduction

Canadian Journalists for Free Expression (CJFE) is a non-profit, non-governmental organization dedicated to protecting and promoting free expression both in Canada and internationally. CJFE has worked on a variety of fronts to develop independent media around the world. The organization has conducted media training projects in Indonesia, Thailand and Cambodia, and is currently engaged in an extensive media re-building program in Sierra Leone. In addition, CJFE manages a Journalists in Distress Fund, which provides medical, legal and emergency travel assistance to journalists who have recently been persecuted because of their work.

Here at home, CJFE organizes its annual Press Freedom Awards Banquet each November, during which time journalists from Canada and overseas are recognized for their courageous work in the face of often deadly obstacles. CJFE has also embarked on a policy and advocacy development initiative on a number of issues that affect the Canadian media. The areas identified by the organization as particularly crucial to working journalists include media concentration, search and seizure/ protection of sources and access to information.

Access to Information

CJFE advocates unhindered public access to information and the monitoring of the processes by which information is sought and either granted or denied. The organization seeks to effect legislative and policy changes that reduce unwarranted government secrecy and support Canadians' right to know about the institutions and agencies that it either funds or relies upon to carry out services on behalf of the public.

In cultivating an environment in which citizens are the recipients of information that was formerly cloaked in government secrecy, CJFE acts on the belief that access to information is essential for the realisation of everyone's civil and political rights. Article 19 of the Universal Declaration of Human Rights says: "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers." Moreover, the right to access to information underpins two sections of Article 21: "Everyone has the right to take part in the government of his country" (Section 1) and "The will of the people shall be the basis of the authority of government" (Section 2). An informed citizenry is paramount for a democracy to be truly representative, responsive and open. Without a knowledge base of information that is in the public interest, citizens will be incapable of making decisions that strengthen democracy; instead, the will of the people will inevitably be undermined and result in weakening the authority of government institutions and of Canadians' elected representatives.

The Access to Information Review Task Force

CJFE welcomes this opportunity to make a public submission to the Access to Information Review Task Force, which has a mandate to review all components of the access to information framework, including the Access to Information Act (ATIA), regulations, policies and procedures. CJFE believes that the time is ripe for a thorough assessment of the legislation to be made in order to ensure that that ATIA responds to the needs of Canadians and, with regard to the major constituency of CJFE, the media.

CJFE Concerns

There are several areas of improvement to the ATIA. CJFE has identified some that merit particular scrutiny:

1. Fee structure

A change in fee policy could have a substantial impact on the right to information. If changes for processing requests and the amount charged for handling them are among the recommendations to come out the review, the most obvious fallout is that charging increased fees to have access requests processed will result in a drop in the number of requests. A potential financial barrier to access to information would result. This would obviously affect individual citizens. (Indeed, in Ontario following changes to the freedom of information law introduced by the Harris government in January 1996, there was a marked decline in personal information requests.) On the other hand, organizations and businesses will not be affected by having to pay more to have requests processed.

Currently, an information request to federal departments costs $5. If that were to rise to $20 or $25, for example, then many people who make such requests would be forced either to reduce the amount they submit or to stop them altogether. In terms of the media, while many larger newspapers could withstand such a hit, small, independent papers would be negatively affected.

One interesting aspect that arose out of the Ontario changes is that the cost of administering the access to information law declined substantially as the volume of requests decreased. In some ministries in Ontario, fewer requests also meant faster response times. Still, for requests that are complex and which could drag on for long periods of time, such as those that seek information about internal policy discussions and development, changes in the fee policy may mean that, for many individuals, they will become prohibitively expensive. In general, a possible decline in the volume and sensitivity of access requests might lead to a decline in the number of complaints to the Information Commissioner. Government departments may also decide to turn down such requests, arguing that they are too time-consuming and complicated to process.

Under a revised ATIA, it is possible that routine information requests may be diverted into the federal access to information system. Due to government cutbacks over the years, cash-strapped departments may be more likely to require formal access requests, either to discourage them or take advantage of a new fee schedule.

2. The increased outsourcing of government

This has become a thorny issue for those concerned about access to information. Several years of government cutbacks have altered the belief that public work must always be done by public servants within government departments. There are entities that the ATIA currently does not cover, but which, in many instances, were created by federal legislation (eg, Canadian Blood Services). Today, a wide variety of organizations have now assumed important public functions: public agencies designed to work at arm's length from government, private contractors, non-profit organizations and public-private consortia.

In confronting this new way of doing government, it will be necessary to have the ATIA cover such entities. However, many of them have well-entrenched traditions of secrecy. Therefore, of paramount concern to CJFE - and especially to media outlets that seek to disclose and report on such organizations - is to ensure that the principles underlying the ATIA be extended to cover the activities of these quasi-governmental organizations and private contractors carrying out work in the public sector.

3. The Access to Information Review process

Aside from specific concerns about the ATI legislation and procedure relating to its implementation, CJFE wishes to comment on the review process itself. First of all, there is the matter of the government conducting an internal review of a mechanism that it itself regulates and operates. The review should be external and public, ideally directed by an independent entity. In addition, the federal institutions enjoy significant advantages in terms of resources in order to advance their own agenda vis-à-vis reforms to the ATIA, while external stakeholders such as CJFE count on far fewer resources.

Elsewhere, it is noted that the Task Force has refused to allow the External Advisory Committee of the Review to have a role in shaping its own research agenda. To our knowledge, the Task Force has not published its workplan or any information about its research activities. The meetings of the Task Force itself are not reported. More generally, we understand that the Minister of Justice continues to rely on her discretion under the ATIA to deny access to internal documents that contain views of departments of proposals for reform of the legislation. Were there more transparency in this regard, the problem of imbalance would be remedied in part.

Recommendations

CJFE:

• calls on the Office of the Information Commissioner to keep a closer watch on the performance of the law;
  
  
• calls for the Office's annual reports to include more detailed information about the performance of federal departments;
  
  
• asks that the federal government demonstrate that a new fee policy, were it to come into being, not only justify changes to that policy but that it will not affect citizens' right to information and will maintain transparency, which is a legitimate part of government;
  
  
• calls for the ATIA's scope to be broadened to cover areas and entities that it currently does not cover, but which, in many instances, were created by federal legislation (eg, Canadian Blood Services);
  
  
• further asks that administrative actions in which the federal government transfers responsibilities without any legislative action at all (eg, the Greater Toronto Airport Authority) be covered;
  
  
• recommends that the Office of the Information Commissioner be equipped to monitor legislative proposals that create new organizations that are not explicitly under the law and which do not contain special provisions preserving access rights;
  
  
• calls on the Office Information Commissioner for help in developing standards and monitoring trends in this regard;
  
  
• asks that efforts be made to improve the access to information process in order to reduce delays and promote greater transparency, including through the use of the new technology (eg, Internet);
  
  
• calls for the complete disclosure of the Task Force's workplan and research activities as well as the reports of its meetings; and
  
  
• asks that efforts be made by the Task Force, in the months remaining before it is to present its final report, to ensure that the review, in order to be effective, be balanced and transparent so that it satisfies stakeholders both within and outside of the government.

Observations reçues par le Groupe d'étude