1.1 Mandate

On 23 February 2016, the House of Commons Standing Committee on Access to Information, Privacy and Ethics (“the Committee”) agreed to the following motion:

That, pursuant to Standing Order 108(3)(h)(i) the Committee undertake a study on the Access to Information Act.[1]

The Committee began its study on 25 February. It held 12 meetings during which it heard from 41 witnesses. It also received eight briefs.

The Committee wishes to thank all those who participated in this report, including the witnesses, the interpreters, the committee staff, the analysts, the translators and the publications team.

1.2 Review of the Access to Information Act

The Access to Information Act (the “Act”), which came into force in 1983, provides Canadians with the right to access to information in records under the control of government institutions. In 2006, the Federal Accountability Act extended coverage to about 70 institutions, including officers of Parliament and Crown corporations and their wholly owned subsidiaries. It also introduced a duty to assist requesters.[2]

In March 2015, the Information Commissioner of Canada, Suzanne Legault, submitted a special report to Parliament entitled Striking the Right Balance for Transparency — Recommendations to Modernize the Access to Information Act,[3] in which she made 85 recommendations.

In November 2015, Prime Minister Rt. Hon. Justin Trudeau made public the mandate letter to the President of the Treasury Board, Hon. Scott Brison, in which he established the following priority:

Work with the Minister of Justice to enhance the openness of government, including leading a review of the Access to Information Act to ensure that Canadians have easier access to their own personal information, that the Information Commissioner is empowered to order government information to be released and that the Act applies appropriately to the Prime Minister’s and Ministers’ Offices, as well as administrative institutions that support Parliament and the courts.[4]

On 31 March, Minister Brison announced that reform of the access to information framework would follow a two-phase process. During the first phase, the government will implement the following commitments, as well as other improvements identified by the Committee and through consultations:

• giving the Information Commissioner the power to order government information to be released;
• ensuring the Act applies appropriately to the Prime Minister’s and Ministers’ Offices;
• and it also applies to administrative institutions that support Parliament and the courts.[5]

On 5 May, Minister Brison issued an Interim Directive on the Administration of the Access to Information Act in which government officials were directed to:

• waive all Access to Information fees apart from the $5 filing fee, and
• release information in user-friendly formats (e.g. spreadsheets), whenever possible.[6]

During his appearance before the Committee the same day, Minister Brison said the government plans to implement a mandatory five-year review of the Act, address the problem of frivolous and vexatious requests and improve performance reporting.[7] He also said the second phase of the reform of the Act will be a full legislative review, to be completed in 2018.[8]

1.3 The need for reform

Witnesses who appeared before the Committee generally agreed that the Act is due for reform. Mr. Toby Mendel, Executive Director for the Centre for Law and Democracy, talked about his organization’s rating system for assessing legal frameworks for the right to information. Based on this system, he said that Canada scored 79 points out of a possible 150 points and that it ranked 59^th out of 102 countries that had been rated.[9]

Sean Holman, Vice-President of the Canadian Association of Journalists, argued that Canada has always been a laggard in freedom of information and that the Act fortified secrecy.[10] He was supported by Aaron Wudrick, Federal Director of the Canadian Taxpayers Federation.[11] Duff Conacher, Coordinator of Democracy Watch, expressed a similar opinion.[12] Ken Rubin, a public interest researcher, called for “basic structural change.”[13]

Mark Weiler, a web and user experience librarian, who was more supportive of the current Act, said that it needs improvements.[14] Michel Drapeau, retired Colonel and a lawyer who specializes in access to information and privacy law, argued that the problems in the access-to-information system were not as a result of the Act being defective, but were due to the lack of motivation on the part of federal institutions and the absence of oversight to hold institutions to account.[15]

The Committee is of the opinion that the Act is due for reform, and decided to focus on the following areas:

• Extending coverage, particularly criteria for adding institutions and Parliament;
• The right of access, particularly the duty to document, frivolous and vexatious requests, the format of information and fees;
• Timelines, particularly legislated times for extensions;
• Maximizing disclosure, particularly replacing exclusions with exemptions, advice and recommendations and Cabinet confidences;
• Strengthening oversight, particularly the strengths and weaknesses of different oversight models;
• Open information, particularly the obligation to publish information of public interest;
• The mandatory periodic review of the Act;
• The role of access to information and privacy (ATIP) coordinators; and
• The Office of the Information Commissioner.

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