Canada’s information commissioner says a provision that allows government institutions to refuse to disclose advice to a minister ‘is one of the most abused’ in the Access to Information Act.Sean Kilpatrick/The Canadian Press
Canada’s freedom of information watchdog has accused Ottawa of maintaining a culture of secrecy, saying some federal departments are abusing exemptions to Canada’s access to information law as an excuse to withhold documents.
In an interview, Information Commissioner Caroline Maynard criticized government departments for wrongly withholding records, including statistics, on the grounds that they are exempt from disclosure because they count as advice to ministers.
She said exemptions to the federal access to information law, which enshrines the principle that citizens have a right to know, are being widely used to deny freedom of information requests.
Ms. Maynard said the exemption that allows a government institution to refuse to disclose advice to a minister should be narrowly applied, but is instead being used to withhold records.
She said the provision “is one of the most abused” in the 40-year-old act, and she thinks it should be rewritten.
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Ms. Maynard added that in briefing notes for ministers, “we tell them, there’s one paragraph that’s advice, the rest is all the basis on which your advice has been given. So, that should not be covered by the exemption.”
Ms. Maynard said there should be a presumption in favour of releasing information, rather than withholding it.
She criticized some government officials whose first reaction to a records request is: “What is it that we should redact? What is it that we should exclude from this disclosure?”
“The government needs to change their culture,” she said.
“I still think that Canada can do better. I still think that leadership can promote transparency, can promote disclosure by default.”
During this year’s general election, Prime Minister Mark Carney signalled that if he was elected, he would commit to a review of Canada’s access to information regime.
When asked at an April press conference about his position on the issue, which was not mentioned in the Liberal platform, he said a review would serve Canadians well.
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“I think looking at access to information is quite important. The speed with which the information is provided, the redactions – I’m happy to commit to having a review of that,” Mr. Carney said. “Because I do find that, at least as an outsider until now, and as a consumer of it, that I can’t always follow the process.”
Ms. Maynard said an update to the Access to Information Act is long overdue. She said the volume of information has hugely increased since the act was first passed in 1983, to include e-mails and other electronic records. Because her office is dealing with such a huge volume of complaints, she said it takes two years to make a ruling.
“It shouldn’t have to take two years to investigate a complaint,” Ms. Maynard said. However, she added that her office has managed to cut the backlog down from four years.
By the end of this June, the watchdog had an inventory of 2,294 complaints which had yet to be determined. Between April and June, the information watchdog received 1,329 complaints, including about refusals of requests and delays in replying.
But Ms. Maynard said some federal departments are trying to be more transparent, with access to information officials working hard to abide by the openness provisions of the act.
Globe and Mail investigation Secret Canada found that public institutions are routinely breaking access laws by violating legal time limits, redacting too much information and claiming no records exist when they do.
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The commissioner said some departments are denying requests on the grounds that complying would breach cabinet confidences, but they may be applying that exemption too widely.
“Now we don’t have any way to question when they say something is cabinet confidence, whether it is or not, because I have no authority to review those,” Ms. Maynard said.
“We don’t see the cabinet confidence, so we are asking to see them at least so we can limit it to an actual cabinet confidence.”
In 2019, changes were made to the access to information law, giving the Information Commissioner new powers, including to issue binding orders.
But some of her orders telling government departments to disclose information have been ignored, and Ms. Maynard has had to go to court to try and force the handover of records.
She has used a mandamus writ to make some departments, including the Department of National Defence, comply with their duty to release information. Since the writs were served, the volume of access complaints at the Defence Department has dropped, she said.
The Information Commissioner said if Ottawa were more transparent, it would increase both government accountability and public trust.
“Information leads to trust, leads to confidence,” she said. “And if people don’t have that information, they don’t know who to trust anymore.”