Opening Remarks before the Standing Committee on Access to Information, Privacy and Ethics

OTTAWA, ONTARIO

[2006-6-19]

Mr. Chairman, members of the Standing Committee on Access to Information, Privacy and Ethics, thank you for inviting me to assist you in your deliberations. Many of you are new to this Committee; I congratulate you and wish you well as you take up your important responsibilities.

This Committee has a profoundly important role to play in supporting the values of ethical and accountable governance. That solemn responsibility will become immediately apparent to you as you consider how to respond to: (1) the government’s discussion paper on strengthening the Access to Information Act (issued on April 11, 2006); my Special Report to Parliament in response to Bill C-2 (the Federal Accountability Act) and the discussion paper and (3) the proposed Open Government Act which my office drafted, as the model for access reform, at the request of this committee one year ago.

The core purpose of the Access to Information Act is to make governments accountable and to ensure the health of our democracy by enabling citizens to know the real story of what governments are up to (not just the spin) and to deter and expose corruption and mismanagement. The Supreme Court of Canada has on several occasions spoken of the vital importance of the Access to Information Act in our society.

It is precisely because so much is at stake when we seek to change the Access to Information Act, that I am so deeply disappointed by the government’s failure to deliver on its election promise to introduce the proposed Open Government Act as a component part of the Federal Accountability Act. And I have expressed elsewhere, my disappointment that the amendments to the Access to Information Act which have been proposed in Bill C-2, do not reflect the principles which the government promised would guide access to information reform. Finally, I am disappointed that the content of the government’s discussion paper has very little to do with strengthening the right of access; instead, it urges more talk, not action, and its proposals would increase secrecy and weaken independent oversight of government decisions to keep records secret.

My comments are not a partisan attack on the government – they are, in fact, almost identical to the criticisms I was making one year ago of the Liberal government. Both governments urged this Committee to keep studying access reform without the benefit of a government bill; both provided the Committee with a discussion paper which would weaken, not strengthen, access reform.

My plea today, is the same plea I made last year – it is time to stop talking about access reform and time to do access reform.

Last year, at the request of the Committee, I offered the Open Government Act as the blueprint for reform. That proposed Act reflects the current design and content of modern access to information laws; is informed by the recommendations of previous Parliamentary studies, government task forces, and Information Commissioners. It is not radical; it ensures that secrecy can be maintained when it is justifiable.

This year, I am even more convinced of the wisdom of the Open Government Act proposals (and the Conservative government’s election platform proposals) because we now have the results of the Gomery Commission of Inquiry’s study of needed reform to the Access to Information Act.

You may recall that part of Justice Gomery’s mandate was to study and make recommendations concerning changes to the Access to Information Act, which would improve the accountability of government and assist in deterring and identifying wrongdoing and mismanagement in government. Justice Gomery heard from many witnesses and experts all across Canada and reported his conclusions in his second report issued on February 1, 2006.

You will find Justice Gomery’s recommendations for access reform set out in Appendix "A" of the Special Report to Parliament which I tabled last month. On virtually all of the issues raised in the government’s discussion paper, Justice Gomery endorses the approach taken in the proposed Open Government Act. For example, Justice Gomery recommends that:

1. Records held in the offices of ministers be subject to the right of access;

2. The scope of Cabinet secrecy be reduced;

3. Exemptions should contain an injury test and be restructured as proposed in the Open Government Act;

4. The class exemption contained in section 24 of the Access to Information Act, which gives mandatory effect to secrecy clauses in certain other statutes, be abolished;

5. There be an overriding obligation on governments to disclose records whenever the public interest in disclosure clearly outweighs the need for secrecy;

6. There be, in the Access to Information Act, a positive legal duty on public officials to create records and that it be an offence to fail to do so with intent to deny access
rights;

7. All federal government institutions should be subject to the right of access according to defined criteria and subject to complaint to the Information Commissioner should governments fail to add institutions to the Act’s coverage;

8. The procedural incentives for timely responses to access requests recommended in the Open Government Act, be adopted; and

9. The proposals in the Open Government Act for increasing the Commissioner’s powers to take matters to Federal Court and to make the investigative process more transparent, be adopted.