Annual Report: 2002-2003

Twenty years ago, on July 1, 1983, the Access to Information Act came into force in Canada. From that moment, Canadians had a right of access to records held by federal government institutions (subject to limited and specific exemptions) and a right to have refusals to disclose records reviewed, independently of government, by the Information Commissioner and the federal courts. Two decades is not long in the life of a statutory right. Yet, in its short life, the Access to Information Act's ability to overcome barriers to openness, thrown up by a deeply-imbedded governmental culture of secrecy, has been put to test after test. The Act has risen to the challenge; it has shown its strength to overcome barriers of unreasonable delay, fees and application of exemptions. In the face of incidents of records alteration, hiding and destruction, Parliament amended the access law to strengthen its ability to overcome these barriers to access as well. Parliament made it an offence to engage in or counsel such activities, punishable by imprisonment for up to two years, a fine not exceeding $10,000 or both.

Only four major barriers to the full vibrancy of the right of access remained--until this reporting year--unresolved. Three of these intransigent barriers arose from the government-held views that: 1) the Act gives government an unreviewable right and obligation to exclude any information from the right of access which it considers to be a "cabinet confidence"; 2) the Act constrains the public right of access by a broadly-defined zone of privacy for information about public officials; and 3) the Act does not apply to records held in the offices of ministers of the Crown or in the Prime Minister's office. The fourth barrier arises from the crisis in information management in government.

This year, the first two of these remaining barriers to public access were struck down by the Supreme Court of Canada and the Federal Court of Appeal in three unanimous decisions. The Supreme Court of Canada ruled that decisions by government to refuse access, by asserting that records contain cabinet confidences, may be reviewed by courts and by bodies such as the Information Commissioner.

As well, the Federal Court of Appeal ordered the government to narrow the zone of secrecy heretofor afforded to cabinet confidences. The Federal Court of Appeal ordered the Clerk of the Privy Council to begin respecting the will of Parliament (as expressed in the Access to Information Act) by disclosing the records or portions of records which contain the background, problem analysis and policy options presented to Cabinet for decision-making purposes.

Also, this year, the Supreme Court of Canada ruled that the sphere of privacy accorded to public officials is significantly smaller than that previously asserted by government. It reminded governments that the value of accountability has to be taken into account in defining the proper zone of privacy for public officials.

Indeed, in all these decisions, our senior courts emphasized that the purpose of the Access to Information Act is to enhance the accountability of government and constrain the ability of government to assert secrecy to interfere with public inquiry.

These three decisions (which will be discussed in more detail later) constitute profoundly important 20th anniversary gifts of recognition to the Access to Information Act. They are the highlight of this reporting year.

However, it is important to note that there remains unresolved the barrier of secrecy with respect to records held in the departmental offices of ministers and the Prime Minister's office. This issue remains under investigation by the Information Commissioner and it is the subject of applications by the government before the Federal Court Trial Division. As well, there remains unresolved the serious shortcomings in information management in government. This matter is more fully dealt with in Chapter II at pages 29 to 44.

In the short life of this law, it has proved its ability to overcome the methods of resistance to openness invented by governments. In a word, hindsight shows that Parliament was remarkably prescient when it adopted this law--it not only articulated with care the limited and specific circumstances in which secrecy is authorized, it also expressed clearly the purposes of the Act in order to guide ministers, information commissioners and courts in assessing whether or not specific records meet the Act's stringent tests for asserting secrecy.

Yet, there remains a deep nostalgia in the bureaucracy for the days when officials controlled information and the spin of the message. Officials have not given up the fight to weaken the law, but they have come to realize that the only effective strategy left to them is to rewrite the law. Such a strategy is in train and it prompted the Information Commissioner, this year, to submit a Special Report to Parliament waving a flag of concern and caution about the government's proposals to rewrite the Access to Information Act. This matter is discussed at pages 26 to 28.