Remarks to 2004 Access and Privacy Conference, University of Alberta – “Access to Information Essentials: What a Prime Minister should Know”

EDMONTON, ALBERTA

[2004-6-11]

There are occasions in both private and public life where it seems appropriate to take stock – to see where we’ve been and to attempt to see what the future may hold. A change of government is one of those times in public life. In the time available to me today, I am going to give you a brief look at the state of the health of the Access to Information Act and a prognosis for the future health of the Act after the election on June 28th. I have titled my remarks, "Access to Information Essentials: What A New Prime Minister Should Know", because in order for the next Prime Minister to be successful in dealing with access to information reform, a reform long overdue, he will need to cut through some very entrenched mythology about how access works.

While I don’t want to use the health metaphor unduly, I think it is fair to say that, as of the date that Mr. Martin became Prime Minister, and continuing as of today’s date, the condition of the Access to Information Act could only be described as "guarded".

Almost from the date of it coming into force, July 1, 1983, the Act suffered from neglect, ignorance and attacks from within the public service and from the government of Brian Mulroney. When Jean Chrétien became Prime Minister, amid promises of a new régime of transparency and accountability, it seemed as if there might yet be hope for the Act. It didn’t take long for those hopes to be dashed. A culture of secrecy, built on notions such as "ministerial accountability" and "public service anonymity," was stronger than many realized.

Time does not permit me even to mention, except in passing, all of the ways in which the Act has been challenged by successive governments. They are not dissimilar to what has been experienced in almost all jurisdictions that adopt a right of access. There has been the overbroad application of exemptions and exclusions; attempts to discourage use of the law by high fees and excessive delays; destruction and alternation of records; failure to make records or to include them in official filing systems, inadequate searches and efforts to weaken oversight by challenging the investigative powers of Information Commissioners and starving them of the necessary resources to do the job.

When I became Commissioner six years ago, my biggest surprise was that obedience to the spirit and words of the Access to Information Act had not become embedded in the Public Service after 15 years of the Act’s operation. As you can see, what has become embedded is a strong desire to avoid the rigors of openness by too many in the Public Service. Senior officials boast openly about their strategies to avoid the access law.

I think that most informed observers were not surprised when governments treated the Access to Information Act as a secrecy Act. After all, it contains some 13 justifications for secrecy, some of them mandatory. I, for one, was not surprised when, for example, public officials began to justify a wide realm of secrecy to protect their own privacy. The only two cases under the Access to Information Act to have reached the Supreme Court of Canada have concerned this issue of how much privacy should be accorded to information about public officials. Both cases found that the zone of privacy had been cast too broadly by the government and that inadequate weight had been given to the need for public accountability of public officials. This issue is still contentious. At present, the courts in P.E.I. are considering the legitimacy of the provincial government’s refusal to disclose a list of the names of public servants in order to protect individual privacy.

As well, I was not surprised when governments tried to expand the reach of executive secrecy by giving the broadest possible interpretation to the notion of "cabinet confidence." Two recent cases, one a decision of the Supreme Court of Canada in Babcock, and one a decision of the Federal Court of Appeal in Ethyl Canada, put some long-overdue limits on the government’s ability to assert the cabinet confidence privilege under the Canada Evidence Act and the Access to Information Act.

And, we have not heard the last word on this matter, as the Privy Council Office struggles to give effect to the greater degree of openness called for by the courts without compromising the cabinet’s ability to cloak its work in secrecy. The most recent slight-of-hand is for background material to be removed from the cabinet confidence privilege (as required by Ethyl), but be recloaked in secrecy under the advice exemption.

WRONGDOING

On the other hand, there were some real surprises. I, for one, did not expect very senior officials to engage in sneaky, treacherous acts of wrongdoing to undermine the right of access. And yet, we have had more than our share of such cases. You will recall the former Chief of Defence staff who stepped down after it was revealed that he had counseled his subordinates to re-title documents and, when access requests were received using the original title of the document, to answer that no such records exist. As well, there was the destruction of the audiotapes and transcripts of the meetings of the Canadian Blood Committee at the height of concern over tainted blood, to avoid disclosing them in response to an access request.

In another case, a Deputy Minister learned the identity of a requester who had asked for the DM’s expense claims. The DM wrote to the requester demanding to know why and insisting that such requests cease. When asked by the Information Commissioner to explain who had informed the DM of the requester’s identity, the DM simply refused and challenged, in the courts, the Commissioner’s authority to try and punish him for contempt. When he lost his legal case, the DM agreed to answer the question. The answer he gave (even after months of court wrangling) was: "I can’t remember."

None of us expected that senior public officials would be so willing to sacrifice their honesty and integrity to protect the culture of secrecy.

These issues were serious enough to prompt Parliament to pass, unanimously, Colleen Beaumier’s private member’s bill which added section 67.1 to the Act. This section creates an offence for destroying, mutilating, altering, falsifying or concealing a record with the intent to deny a right of access or to direct, propose, counsel or cause anyone to do so. The penalties are stiff, including, upon conviction of an indictable offence, a prison term of up to two years and/or a fine of up to $10,000. There has yet to be a prosecution under this section.

I have not even touched on other troubling practices such as: excessively lengthy extensions of time, in some instances, three years, for responding to even simple access requests; political interference by ministers and "special" scrutiny and slower treatment for certain categories of access requesters such as journalists and opposition members of Parliament.

COURT CHALLENGES

In the past four years, at the federal level, there have been 27 judicial review applications taken by the Crown against the Information Commissioner seeking to prevent investigations from reaching into the offices of ministers and the Prime Minister and seeking to curtail his investigative powers. The bulk of these cases, which began in 1999, were decided on March 25, of this year. While there is not enough time to go into the Court’s decision in any detail, I’d like to give some highlights of it so that you can appreciate the extent to which the government attempted to weaken my office’s investigative powers.

The 27 applications may be grouped into seven categories, seeking to:

remove the commissioner’s powers to have access to records held in ministers’ offices during his investigations;

remove the commissioner’s powers to subpoena ministers and members of a minister’s staff during his investigations;

remove the commissioner’s power to review records, which the government claims to be subject to solicitor-client privilege, unless the commissioner can show that such access is "absolutely necessary";

remove the commissioner’s powers to ask government witnesses to express opinions about matters of government policy;

remove the commissioner’s powers to make and keep copies (until the end of the investigation or related court proceedings) of records provided to it by government during investigations;

remove the power of the commissioner to impose confidentiality orders upon witnesses who are questioned during investigations; and

remove the power of the commissioner to complete an investigation before the matter under investigation may be brought before the court for determination. In this case, the government asked the court to decide that records held in ministers’ offices are not subject to the right of access.

Before a judgment on the merits was issued by the Federal Court Trial Division, some four years of litigation intervened. Procedural issues were dealt with by six judges of the Trial Division, six judges of the Court of Appeal and three judges of the Supreme Court of Canada. Most recently, on March 25, 2004, Justice Dawson of the Trial Division of the Federal Court disposed of the merits and rejected the limits on the Commissioner’s powers which I have just described.

The main goal for the government, in its attack on the jurisdiction of the Commissioner, was to obtain a declaration from the Court that records held in the office of the Prime Minister and ministers are not records under the control of the departments over which these public officials preside. It was the government’s contention that the court should not have to wait for the commissioner’s investigative finding on this very issue. In other words, the government believed that it could avoid the rigors of the commissioner’s investigations by asking the court to issue a preemptive ruling on an issue under investigation by the commissioner.

Justice Dawson refused to grant the declaration sought by the government. She concluded that granting the declaration sought by the government would be inconsistent with the scheme of the Access to Information Act. In particular, she found that it is up to the commissioner to make the initial determination of threshold jurisdictional issues, such as "control". Justice Dawson reaffirmed that any preemptive declarations of the sort sought in this case by the government would, if granted, deprive the government, complainants and the court of the benefit of the commissioner’s investigation and report.

HOPE FOR THE FUTURE

Yet, despite this rather dismal record of the two governments in power since the Act came into force, I am the eternal optimist and have hope for the future. When the tenure of Prime Minister Martin began, he expressed an intention to improve the quality of Canada’s democracy, including the transparency of its federal government institutions. He announced his intention to address what he referred to as the "democratic deficit", and used words such as "openness", "transparency", "accountability" and "integrity." Indeed, all party leaders profess support for these values. The question is: Will our soon-to-be elected government be sufficiently self-confident, courageous and honest to beat the secrecy addiction to which previous governments, despite their good intentions, have fallen victim?

Recent signs are encouraging. The Martin government announced a policy of proactive disclosure of the travel and hospitality expenses of ministers, their staff and senior public servants. We have already seen newspaper articles recounting the details of these monthly-updated records on departmental websites. As well, in response to the Auditor General’s report concerning the sponsorship program, the Martin government announced that it would study the issue of making Crown Corporations subject to the Access to Information Act. Finally, the most encouraging sign is the unanimous, recorded vote in the House of Commons on second reading, in favour of the private member’s bill, put forward by John Bryden, containing comprehensive amendments to the Act. It remains to be seen what will happen with this bill when a new Parliament commences, but this development is a good sign that there may be the political will to make the Access to Information Act even stronger and more effective than it has proven itself to be in its first 21 years of life.

Regardless of the results of the upcoming election, regardless of who the new Prime Minister is, a firm grasp of where we have been with this legislation and where we need to be going, and very quickly, is the most essential thing that a new Prime Minister should know. To assist whomever it may be, I have a short shopping list of priorities for the future of the federal access to information régime. It includes such items as:

making officers of Parliament, such as me, subject to the Act along with Crown Corporations and federal foundations;

reforming and strengthening the Access to Information Act whether it be by reintroducing the so-called current Bryden bill or by means of a government bill which builds in recommendations made in 1986 by the then Justice Committee;

ending the crisis in records management which grew from fear of openness (i.e. not making records or not keeping them in official files) — a massive undertaking which will be the real test of whether or not the right of access remains vibrant for another 20 years.

As the saying goes: A man’s reach must exceed his grasp, or what’s a heaven for!

Thank you for your kind attention. I will be happy to answer any questions you may have.