Revise Access to Information Law to Restrict Withholding Vital Information From Public: Canada’s Largest Federal Public Service Union

The Canadian flag flies near the Peace Tower on Parliament Hill in Ottawa on June 17, 2020. (Adrian Wyld/The Canadian Press)

The federal government should revise the Access to Information (ATI) Act such that vital information that serves public interest can be released without any restrictions unless the release of them would cause undue harm to the country, says Canada’s largest federal public service union.

In a submission to the Treasury Board of Canada Secretariat (TBS) in August 2021, the Public Service Alliance of Canada (PSAC) said the government’s contracts with private corporations should be made public unless it can be shown that such a release would cause undue harm to the nation, public interest, or the well-being or safety of people directly impacted by the release.

“The ATI process has become a key method for the union to receive information central to its labour relations, representation and negotiations responsibilities,” said PSAC in the submission, stressing that the “wellbeing of individuals” does not include “the profits or the like for corporate shareholders or owners.”

The submission was published on the House of Commons website on Dec. 16. The parliamentary ethics committee has been conducting a statutory review of the 1985 Act.

“We are concerned over the employer’s reliance on ATI as a means to avoid its legal obligations to produce documents relevant to bargaining and grievance processes in particular,” said the submission, as first reported by Blacklock’s Reporter.

‘Public Interest Override Clause’

The union said protocols to retrieve records are restrictive even to federal employees who may need them in the course of their work.

“PSAC represents members who process Access to Information Protocol (ATI) requests, including administrative employees, ATI officers, and ATI supervisors,” the submission said.

“PSAC members who work for federal government departments, agencies, Crown corporations, and other organizations governed under the Access to Information legislation may find their work subject to ATI requests.”

The submission also included the recommendations of the Canadian Labour Congress (CLC), which proposed amending the Act to include a “public interest override clause” to waive ordinary confidentiality.

“[This] would allow for either the full or the partial release of exempted information, if it is in the public interest to do so,” wrote the Alliance on behalf of CLC. Disclosure should be extended to “include private entities that deliver substantial public programs, services or functions.”

Calls to reform the Act were also heard from civil society groups, journalists, and members of the public, urging for expansion of the law, removal of loopholes, stricter timelines for responses, and more resources to make the system work.

‘Discretionary’

According to The Canadian Press on Dec. 22, the TBS said many of the most pressing challenges facing the access-to-information system do not require legislative change. The department will instead work to improve the system.

In a report presented to Parliament on Dec. 13, the TBS argued that exemptions to disclosure are “discretionary.”

“When exercising discretion, the institution head must consider all relevant factors for and against disclosure. Though this may include public interest as a factor, it is not an explicit requirement to weigh the public interest,” said the report, titled “Access to Information Review Report to Parliament.”

“If there were a complaint, the Information Commissioner may raise the public interest as a factor. For their part, the federal courts have avoided raising specific factors of discretion for the institution head’s consideration, beyond generalities.”

Shortly before TBS President Mona Fortier tabled the report, Prime Minister Justin Trudeau told The Canadian Press that he looked forward to seeing the report “and looking at how we can continue to be open and transparent,” but stopped short of promising changes.

He defended his government, saying it has ushered in more transparency and openness than previous ones.

In a hearing before the Commons operations committee in February 2021, Information Commissioner Caroline Maynard stressed the importance of access to information, and that it “cannot be suspended” due to the outbreak of the COVID-19 pandemic.

“Government transparency is the foundation of a strong democracy and has never been more important than during this crisis. In other words, we must collectively strive to produce an access to information system in which access requests are processed in a timely manner without interruption, decisions are properly documented, and information is well managed,” she said.

The Canadian Press contributed to this report.