Annual Report: 2004-2005

By law, information commissioners give an annual accounting to Parliament of their activities and concerns. Once every seven years, however, they traditionally look back, not just over the past year, but over their entire term of office. July 1, 2005, will mark the end of this commissioner’s seven-year term and this year’s annual report is his occasion to offer Parliament more than just a one-year snapshot.

At the beginning of his term, in 1998, the commissioner’s first impressions included these:

• that parliamentarians are determined to have a fiercely independent information commissioner. (In 1998, members of both houses of Parliament insisted on the opportunity to put questions to the nominee before voting on the appointment – a first for any officer of Parliament);
   

• that Parliamentarians were deeply troubled by resistance to, and noncompliance with, the Access to Information Act. The most tangible illustration of this concern came in the form of passage into law of a private member’s bill (put forward by Ms. Colleen Beaumier) making it an offence to destroy, alter or conceal records (or to counsel or direct anyone else to do so) with the intent to deny access rights set out in the Act;
   

• that it is something of a conflict of interest to have (as we do) the Minister of Justice responsible in cabinet, and in Parliament, for the Access to Information Act. After all, the Minister of Justice is the commissioner’s adversary in all litigation initiated by the commissioner, and it is the minister’s role to advocate on behalf of secrecy;
   

• that, despite a sea of change in the information technology and government organization environments in which the law operates, the Access to Information Act had not been modernized and strengthened to keep pace. A unanimous report by an all-party committee of MPs in 1986 had recommended wholesale changes; no government (Liberal or Conservative) paid any heed;
   

• that the strategy of delay was in widespread use by the bureaucracy to deny and control access to government-held information. In 1998, 55 percent of complaints to the commissioner concerned failure to meet statutory response deadlines;
   

• that the government’s records management infrastructure was inadequate to support information rights (access and privacy), good decision-making, thorough audit and preservation of the history of Canadian governance;
   

• that the workload of the commissioner’s office exceeded its resources to give timely, thorough and fair investigations. The backlog of incomplete investigations in 1998 was equivalent to six months of work (some 742 cases), a doubling from the previous year. The government’s control over the purse strings posed the greatest threat to the effectiveness and independence of the commissioner; and
   

• that the stubborn persistence of a culture of secrecy in the Government of Canada owed much to weak leadership, not just on the part of leaders of government and the public service, but also on the part of Parliament. In 1998 – 15 years after the coming into force of the Access to Information Act – the Parliamentary committee designated to keep the commissioner’s annual reports under review had never convened for that purpose.

Seven years of experience has reinforced those initial impressions; indeed, those concerns remain at the forefront of the challenges for the coming seven years. That is not to say that there has been no progress; there have been improvements, accomplishments and positive developments on many fronts. Yet, the clear lesson of these seven years is that governments continue to distrust and resist the Access to Information Act and the oversight of the Information Commissioner. Vigilance, by users, the media, academics, the judiciary, information commissioners and members of Parliament, must be maintained against the very real pressures from governments to take back from citizens, the power to control what, and when, information will be disclosed.