It’s a well-worn truism that transparency keeps governments out of trouble—case in point, the Senate expense scandal.
Access-to-information laws (ATI) are meant to keep secrets to a minimum, but in Canada successive government have pledged and failed to fix a now crumbing access-to-information regime. While all parties have said ATI is critical to the health of our democracy and all—at times—agree it is in dire need of an overhaul, little has been done.
Now the NDP are hoping their current effort could bear fruit, but to have any chance it needs the support of the government. While the Conservative line is that the system is working just fine—despite a clarion call for help from Information Commissioner Suzanne Legault last month—even the Conservative’s 2006 election platform had pledged major reforms.
Treasury Board President Tony Clement, the minister Legault said must fix the system, declined to comment on those previous pledges, but said he would look at whatever legislation the NDP eventually brings forward.
For now, the Official Opposition is putting out a series of proposals on what needs to be done. On Monday, they proposed extending ATI laws to cover the House of Commons and Senate administration, giving the information commissioner order-making powers and the ability to examine cabinet documents.
An NDP spokesperson said additional measures would be announced Thursday.
Critical Condition
Canada was once a world leader in access to information laws back when they were introduced in 1983. But those laws haven’t kept up with the march of time and the ATI system is now buckling under the weight of backlogs and exemptions, with no solution in sight.
That was essentially the warning Legault laid out in October when she gave Parliament her annual report. Legault’s office handles complaints about the system, going as far as taking the government or Crown corporations to court when they fail to fill access requests.
While last year’s report had a hint of optimism, this time around Legault raised alarms by saying the system itself was faltering and needed immediate attention.
“When the access to information system falters, the health of our Canadian democracy is at risk. The federal access to information is failing,” she said.
Pat Martin, one of the NDP’s most outspoken MPs and a long-time proponent for access improvements, said the system is on life support, if not dead already.
“All that is lacking is to call the health department and give it a proper burial.”
With tens of thousands of requests fulfilled annually, some might call that an overstatement.
But Legault and others argue the delays are crippling the system. Each delay prompts additional paperwork, and sometimes an investigation, making it more difficult to get to more recent requests. With additional resources, departments can dig their way out, she said, but it takes years.
The problem is compounded by the fact that while the number of requests has grown steadily, so too has the cost to fulfill them, according to research by open data advocate David Eaves.
Although the Conservatives once derided the Liberals under Paul Martin for not reforming ATI laws, now the government praises a system that they themselves only lightly reformed.
Last month Clement ignored the delays Legault pointed to and touted the 54,000 requests were filled last year, some 6 million pages.
“[I]f there are some staffing issues that we can deal with, we can deal with those, but the fact of the matter is, given the exponential nature of inquisitiveness of both the media and ordinary citizens, we are doing more than pulling our weight.”
Legault’s report got wide converge in the press, but little traction with MPs, including the opposition. The NDP barely raised it in question period and it has since been referred to the Standing Committee on Access to Information, Privacy and Ethics, where there hasn’t been any indication it will be discussed.
Attempts to Fix
While many point to the current Senate expense scandal as proof change is needed, the current controversy has not fuelled the same level of angst as the Gomery Inquiry into the Liberal sponsorship scandal in 2004.
That angst was one factor that pushed the 2005 Liberal government to overhaul the system—that and the fact it was important to then Justice Minister Irwin Cotler.
The Liberals brought forward proposals on ATI reforms that never materialized in the form of legislation. The Conservatives and NDP slammed Cotler for what they called a lack of effort while he criticized them for not responding to those proposals with input on possible legislation.
Cotler calls the failure to get that legislation passed one of his lasting regrets.
“For me it was a personal and professional priority. It wasn’t just that I was Minister of Justice—I came into government wanting to do this.”
In the last days of Martin’s government, Cotler had managed to largely get consensus from the bureaucracy, his own party, and the opposition, but time ran out when the minority government fell.
But Cotler did not blame the bureaucracy, as the previous information commissioner did, for the failure to get amendments passed.
That commissioner, John Reid, was deeply disappointed after the Conservatives failed to fulfil major parts of their 2006 election platform, including a broad pledge to follow through on his earlier recommendations for changes to ATI laws.
The sweeping changes Reid called for included rules that could require public officials to document their decisions, actions, and deliberations, and weigh any possible ATI exemptions against the public interest.
Cabinet confidences would also be open to review, and Parliament, currently exempt from the act, would be covered.
Reid had been optimistic the Conservatives would follow through on ATI campaign pledges. He said the test would be whether the new government followed through, “or whether it succumbs to early pressure by the bureaucracy to pull back.”
“I think we now have the answer and it is deeply disappointing,” he said after the Conservatives made their partial reforms.
While the Conservatives did extend the act to cover Crown corporations, they didn’t follow through on other measures, nor give the commissioner the power to order the release of information or the power to review information excluded under cabinet confidence. They also added exemptions Reid said weakened parts of the act.
The NDP has yet to say when they will table actual legislation. The government, meanwhile, has not indicated any interest in addressing problems with the ATI system.
