Canada

1
Canadas Access to Information ActMeasuring Up?

• Panel 3 Select Country Cases
• April 28, 2009 1815
• Americas Regional Conference
• on the Right of Access to Information
• Lima, Peru

2
Freedom of Information in CanadaAll states
should enact legislaton to give effect to the
right of access to information.(Atlanta
Declaration, Key Principle 2)
3
25 Years Later

• How does Canada measure up against the
• Atlanta Declaration and Plan of Action
• For the Advancement of
• The Right of Access to Information
• ???

4
Right of Access to InformationAccess to
information is a fundamental human
right.(Atlanta Declaration, Key Principle 1)

• Access to information is recognized as a
  quasi-constitutional right by the Supreme Court
  of Canada.The purpose of access to information
  legislation is to facilitate democracy by helping
  to ensure that citizens have the information
  required to participate meaningfully in the
  democratic process and that politicians and
  bureaucrats remain accountable to the
  citizenry.
• Right of access is limited to Canadians and
  people present in Canada.

5
Presumption of OpennessAccess to information is
the rule secrecy is the exception.(Atlanta
Declaration, Key Principle 4a)

• Access to Information Act is based on a
  presumption in favour of disclosing
  government-held information.
• It provides a right of access to information in
  records under the control of a government
  institution.
• It is not intended to limit in any way access to
  the type of government information that is
  normally available to the general public.

6
Coverage of the Access to Information ActThe
right of access to information should apply to
all branches of government (including the
executive, judicial and legislative bodies, as
well as autonomous organs) at all levels . . .
(Atlanta Declaration, Key Principle 4b)

• Applies to
• Departments and agencies
• Crown corporations and Officers of Parliament
  recently added by the Federal Accountability Act
• Does not apply to
• Parliament
• Ministers Offices
• Courts

7
Exceptions to AccessExemptions to access to
information should be narrowly drawn, specified
in law, and limited only to those permitted by
international law. All exemptions should be
subject to a public interest override, which
mandates release of otherwise exempt documents
when the public benefit of release outweighs the
potential public harm.(Atlanta Declaration, Key
Principle 4g)

• Necessary exceptions to the right of access
  should be limited and specific.
• Injury tests broadly interpreted, notably
  operations of government
• Public interest overrides limited to personal
  information and third party information
• Cabinet documents explicitly excluded from the
  purview of the Act

8
Exceptions to Access
9
Information Commissioner of CanadaThe requester
should be guaranteed a right to appeal any
decision, any failure to provide information, or
any other infringement of the right of access to
information to an independent authority with the
power to make binding and enforceable decisions,
preferably an intermediary body such as an
Information Commission(er) or Specialist
Ombudsman in the first instance with a further
right of appeal to a court of law.(Atlanta
Declaration, Key Principle 4k)

• Officer of Parliament
• Appointment subject to Parliamentary scrutiny
• Funding for Office Potential for conflict of
  interest
• Ombudsman
• Protects the rights of requesters under the
  Access to Information Act
• Advocates the benefits of open government
• Complaints resolution
• Strong investigative powers, including subpoenas
  and hearings
• No order-making powers orders issued pursuant
  to Judicial Review
• Resolves complaints through mediation and suasion
• Compliance
• Monitors the performance of federal institutions,
  e.g. Annual and Special Reports to Parliament
• Communicates with Canadians, Parliament and the
  media
• Mandate does not include public education or
  research

10
Order-Making Powers in Canadian Jurisdictions
11
Compliance Continuum
12
State of Access to Information in Canada

• Access to Information Act has not changed
  significantly over the years.
• Biggest change Information Technology
• Network Federalism
• Public-private sector partnerships are the norm
• Global, knowledge-based service economy
• Expectations of Canadians
• Culture of service most government information
  should be readily available and free
• New generation of users born in electronic age

13
State of Access to Information Canada

• Access to Information Act has not changed
  significantly over the years.
• Biggest change Information Technology
• Network Federalism
• Public-private sector partnerships are the norm
• Global, knowledge-based service economy
• Expectations of Canadians
• Culture of service most government information
  should be readily available and free
• New generation of users born in electronic age

14
Assessing Performance

• Report card process to assess the performance of
  institutions in responding to requests
• 6 out of 10 performed below average
• 30 day timeline becoming the exception rather
  than the norm
• Greater use of time extensions for longer periods
  of time
• Systemic issues
• Deficiencies in information management
• Exacerbated by the rapid pace of technology
  resulting in more time required to retrieve
  records and missing records
• Growth in the volume of pages reviewed and
  processed
• Increasing number of consultations between
  institutions
• Insufficient qualified personnel
• Lack of leadership

15
Completion Times
16
Improving Performance

• Leadership
• Properly assess, resource and improve information
  management
• Develop an integrated human resource plan to
  address gaps and support professionalism of
  access personnel through formal training and
  certification standards
• Establish criteria to measure the performance of
  institutions in meeting their obligations under
  the Act
• Institutional level
• Allocate adequate resources
• Review processing methods to improve efficiency
  and timeliness
• Improve tracking and reporting mechanisms
• Impact of other policies
• Civil society / Academics

17
Bringing Canadas Access to Information Régime
Into the 21st Century
18
Looking to the FurtureStrengthening the
Compliance Model

• Coverage
• Scope of exemptions and exclusions
• Cabinet confidences
• Injury based with public interest override
• Information Commissioners mandate
• Order-making powers
• Public education and research
• Access impact assessments
• Incentives to provide timely disclosure
• Parliamentary Oversight