Access to Information Act | |
---|---|
![]() | |
Parliament of Canada | |
| |
Citation | Access to Information Act (R.S.C., 1985, c. A-1), last amended on 2021-08-12 [1] |
Enacted by | 33rd Canadian Parliament |
Assented to | 1985 |
The Access to Information Act (R.S., 1985, c. A-1) [1] (French : Loi sur l'accès à l'information) or Information Act is a Canadian Act providing the right of access to information under the control of a federal government institution. As of 2020, the Act allowed "people who pay $5 to request an array of federal files". [2] Paragraph 2. (1) of the Act ("Purpose") declares that government information should be available to the public, but with necessary exceptions to the right of access that should be limited and specific, and that decisions on the disclosure of government information should be reviewed independently of government. Later paragraphs assign responsibility for this review to an Information Commissioner, who reports directly to parliament rather than the government in power. However, the Act provides the commissioner the power only to recommend rather than compel the release of requested information that the commissioner judges to be not subject to any exception specified in the Act.
By 1982, Australia, Denmark, the Netherlands, New Zealand, Sweden, and the U.S. (1966), had enacted modern Freedom of information legislation. Canada's Access to Information Act came into force in 1983, [3] under the Pierre Trudeau government, permitting Canadians to retrieve information from government files, establishing what information could be accessed, mandating timelines for response. By the standards of that era, it came to be considered a model of good practice, having taken the implementation of the law more seriously than other countries. [4] The Act created new offices staffed with trained professionals to manage the inflow of requests, and developed formal procedures to encourage prompt processing of requests. Furthermore, the Information Commissioner served as an easily accessible ombudsperson to arbitrate cases of possible maladministration.
A complementary Privacy Act also came into force in 1983. The purpose of this Act was to extend the present laws of Canada that protect the privacy of individuals with respect to personal information about themselves held by a federal government institution and that provide individuals with a right of access to that information. It is a Crown copyright. This Act stipulates that complaints about possible violations of the Act may be reported to the Privacy Commissioner.
In 1998, following the Somalia Affair, a clause was appended to the Act, making it a federal offence to destroy, falsify, or conceal public documents. [5]
Canadian access to information laws distinguish between access to records generally and access to records that contain personal information about the person making the request. Subject to exceptions, individuals have a right of access to records that contain their own personal information under the Privacy Act [6] but the general public does not have a right of access to records that contain personal information about others under the Access to Information Act.
From 1989 to 2008, requests made to the federal government were catalogued in the Coordination of Access to Information Requests System (CAIRS). [7] Although CAIRS was not originally designed for public use, the information contained in the database generated substantial and continued public interest. [8] Two non-governmental websites [9] offered information from CAIRS to the public with a search facility. In April 2008, the Conservative government of Prime Minister Stephen Harper terminated the maintenance of this database. [7]
In 1987, the Solicitor General tabled a report to Parliament with the authorship and unanimous support of a "Justice Committee" consisting of the House of Commons Standing Committee on Justice together with himself, entitled Open and Shut: Enhancing the Right to Know and the Right to Privacy. [10] It contained over 100 recommendations for amending the ATI and Privacy Acts. Many of these dealt with exemptions from access, recommending the addition of a discretionary injury test in most cases, which would evaluate "the harm to the interest (e.g., the conduct of international affairs) that could reasonably be expected to result from disclosure". The Committee proposed that the complete exclusion of Cabinet records from the operation of the Act be deleted and replaced with an exemption that would not be subject to an injury test. This crucial change would have allowed the Information Commissioner and the Federal Court of Canada to review alleged "cabinet documents" in order to determine whether or not they are, in fact, Cabinet confidences and eligible for exemption. The government response to the report, published in 1987 by the Minister of Supply and Services and entitled "Access and Privacy: The Steps Ahead", generally supported the administrative, but not the legislative, changes proposed in the Justice Committee report. [11] The concept of significant injury as a basis for the application of exemptions was rejected and the exemption for information received in confidence from other governments was justified on the basis that, "[t]he willingness of other governments to continue to share their information with Canada would likely be adversely affected by the lesser degree of protection which would be given if these recommendations were implemented".
In 2000, Information Commissioner John Grace presented his case for reform of the Act. He recognized that "while the Act has served well in enshrining the right to know, it has also come to express a single-request, often confrontational approach to providing information – an approach which is too slow and cumbersome for an information society." He made forty-three recommendations for updating the Act.[ citation needed ]
In August 2000, the Minister of Justice and the President of the Treasury Board launched a task force to review the Act. The committee's report delivered in June 2002, entitled, Access to Information: Making it Work for Canadians, found "a crisis in information management" within the government. [12] It made 139 recommendations for legislative, administrative and cultural reform. Nothing came of this report.
In the fall of 2003, the Member of Parliament John Bryden attempted to initiate a comprehensive overhaul of the Act through a private members bill, Bill C-462, [13] which died on the Order Paper with the dissolution of the 37th Parliament in May 2004. A similar bill was introduced by NDP MP Pat Martin on 7 October 2004 as Bill C-201. [14] It met a similar fate.
In April 2005, the Minister of Justice Irwin Cotler introduced a discussion paper entitled A Comprehensive Framework for Access to Information Reform. [15]
Later in 2005, a draft bill, entitled the Open Government Act, was tabled before the House of Commons Standing Committee on Access to Information, Privacy and Ethics. Developed by Information Commissioner John Reid at the request of the Standing Committee, the proposed act included substantial changes to the law. [16] [17] A primary objective was to address concerns about a "culture of secrecy" within political and bureaucratic environments. This draft bill initially received multi-party support, but not enough to result in the introduction by a government or passage in the form of either of two private member's bills based on this draft.
Essentially this same draft bill with the same title "Open Government Act", but with the crucial addition of full order-making powers for record release, was introduced by NDP MP Pat Martin as Bill C-554 in 2008, and as Bill C-301 [18] in 2011. The latter reached First Reading on 29 September in the first session of the 41st Parliament, and then was reinstated in the second session on 16 October 2013. As of September 2014, it remained on the Order Paper awaiting Second Reading.
In 2009, the Information Commissioner Robert Marleau appeared before the House of Commons Standing Committee on Access to Information, Privacy and Ethics. [19] The Commissioner emphasized that "work [was] urgently needed to modernize" and strengthen the Act. He presented "a list of twelve specific recommendations that represent an important first step" to "address only the most pressing matters". (About 15 weeks later, Mr. Marleau abruptly resigned five years before his normal end of term, for "entirely personal and private" reasons. This was reported to have raised "doubts about the pace and direction of reforms to Canada's access to information laws that he was spearheading." [20] )
On June 6, 2012, the Legal and Legislative Affairs Division of the Parliamentary Information and Research Service published a Library of Parliament Background Paper, entitled The Access to Information Act and Proposals for Reform. [21] The purpose of the Paper was to identify the key points emerging from the major studies of the Act that had been conducted over the previous two decades, and to analyze in some detail some recent proposals concerning the reworking of the legislation. The Paper summarized eleven significant efforts within parliament and the federal government from 1987 to 2009. It then concluded by noting that the Conservative government of Stephen Harper in power in 2011−2012 had proposed to improve access to information, not by amending the Act, but rather by introducing what it called "open government" and "open data" initiatives. The Paper goes on to report that, in response, Canada's information and privacy commissioners suggested that the Action Plan on Open Government represents a missed opportunity for comprehensive reform of the Act. Information Commissioner Suzanne Legault [22] suggested in a letter that the government recognizes and supports the relationship between open government and a modernized Act. She observed, "Our investigations in recent years have demonstrated not only the obsolescence of the statute but also a number of deficiencies in it which may well impede or hamper the development of a truly open government that is receptive to the needs of its citizens and its economy and in step with other administrations."
During his Campaign in 2015, candidate Justin Trudeau, and the Liberal Party he was representing, promised to change the Access to Information Act to include the Prime Minister's and Cabinet Office within its scope. However, his first proposed change to the act in June 2017 did not include anything about either offices. Instead, the proposed changes included promises to proactively release more information than in the past. The bill did include the courts within its scope, which meant that judge's travel and hospitality expenses were now made public. Additionally, briefing binders and mandate letters were also automatically made public.
Other changes that were proposed allowed the Information Commissioner to order specific government departments to publish information. If the department does not, the case is then to be taken to federal court. Another promise made by the Liberals was to hold reviews of the Access to Information Act every 5 years at a minimum. Additionally, under the new proposal the Information Commissioner has the right to refuse to address complaints judged to be "frivolous or vexatious". Under the previous version of the bill, anyone could appeal to the Information Commissioner's office.
Most critiques of the changes to the act concerned the broken promise from the election, while most of the people defending the proposal focused on expanded proactive disclosure. Treasury Board President Scott Brison said this in defense of the government's actions:
"Expanding and putting into law proactive release of government information is an important step in meeting and reflecting the principle of open by default, which we believe is the future of government information sharing." Trudeau did promise during the election to increase the power of the Information Commissioner, which he did. But, many times in the past government's have refused the request of the Information Officer and it has led to Federal Court cases. As expected, politician's representing other parties did were not happy about the broken commitment made during the election. "They left the really big promise broken", NDP Nathan Cullent said in response to the proposal. "By excluding the ability to request information from ministers' offices and the PMO, this government falls short of meeting their campaign promise to make government 'open by default,' was how Katie Gibbs felt about the changes. Gibbs is the executive director of the group Evidence for Democracy, and she publicly supported other parts of the act, but was overall disappointed with the Liberals not living up to their election promise.
Université de Moncton professor Donald Savoie's 2003 book, Breaking the Bargain, [23] observes that in Canada there is a reluctance to put anything in writing, including e-mail, that might find its way into public discourse. As context, he argues that the role of bureaucracy within the Canadian political machine has never been properly defined, that the relationship between elected and permanent government officials is increasingly problematic and that the public service cannot function if it is expected to be both independent of, and subordinate to, elected officials.
In February 2005, the Canadian Newspaper Association published a report entitled In Pursuit of Meaningful Access to Information Reform: Proposals to Strengthen Canadian Democracy. [24] The report was motivated by the increasing difficulty experienced by journalists employed by members of the Association in obtaining "information about government that they required to inform the public on matters of national interest". The report notes that "successive Information Commissioners have criticised a 'culture of secrecy' in Ottawa, in which government departments frustrate the will of Parliament with impunity." A set of twenty specific features of a revised Act were recommended, based on a set of seven "Core Principles".
In 2006, Alasdair Roberts, presently at the Suffolk University Law School and the author of several books on public affairs, [4] presented a report entitled Two Challenges in Administration of the Access to Information Act to the Gomery Commission investigating the Sponsorship scandal in the federal government. [25] In the context of 2006, Prof. Roberts found that "In many respects, Canadian practice [was] superior to practice under the U.S. Freedom of Information Act (FOIA), although the popular conception [was] often the reverse, and also superior to emerging practice under the more recently drafted UK FOIA". The Two Challenges that he identified were Adversarialism in the administration of the Act, and the excessively limited Scope of the Act. Regarding the former, the "balance of forces" between the "sharply opposed interests" for and against disclosure may not "be preserved over time; one side may prove more skilled at developing new strategies than the other. Evidence suggests that federal institutions have developed techniques for managing politically sensitive requests which now undercut basic principles of the ATIA." These techniques were observed to result in substantial delays in processing information requests perceived to be politically sensitive, possibly because they originated from journalists. Prof. Roberts observed that "such delays suggest that a basic principle of the ATIA is widely and routinely flouted by federal institutions. The ATIA is supposed to respect the rule of equal treatment: a presumption that requests for information will be treated similarly, without regard to the profession of the requester or the purpose for which the information is sought". Regarding Scope, Prof. Roberts observed that "a longstanding difficulty with the ATIA has been its failure to include many key federal institutions. For many years, the difficulty [had] centered on the exclusion of Crown Corporations; more recently, the problem has extended to include government contractors and a range of quasi-governmental entities that perform critical public functions."
In September 2008, a 393-page report, sponsored by several Canadian newspaper groups together with the B.C. Freedom of Information and Privacy Association [26] and two Vancouver lawyers, compared Canada's Access to Information Act to the "Freedom of Information" laws of the provinces and of 68 other nations. [27] As the title of the report implies: "Fallen Behind: Canada's Access to Information Act in the World Context", it concludes that "Canada surely needs to at least raise its own FOI laws up to the best standards of its Commonwealth partners–and then, hopefully, look beyond the Commonwealth to consider the rest of the world. This is not a radical or unreasonable goal at all, for to reach it, Canadian parliamentarians need not leap into the future but merely step into the present."
In 2009, Justice Minister Rob Nicholson was reported [28] to have emphatically told the House of Commons Standing Committee on Access to Information, Privacy and Ethics on 4 May that: "I want you to know that I completely disagree with anybody who would suggest that this country has a dismal record on anything related to access to information issues". Mr. Nicholson went on to say "this country has an outstanding record, and if anyone has anything different to say, then I say they are completely wrong."
On 29 September 2009, Stanley Tromp, the Freedom of Information caucus coordinator of the Canadian Association of Journalists and author of the 2008 Fallen Behind report, addressed the Conference for Parliamentarians: Transparency in the Digital Era. [28] Mr. Tromp reported that "FOI experts in other countries have publicly noted the forlorn status of our ATI Act in the world context". Examples he provided include:
In October 2010, an international comparison of access to government information ranked Canada last among four commonwealth nations together with ireland; a significant change from only a decade earlier when the country often served as a model for freedom of information internationally. The University College London study comparing Canada, the UK, Australia, New Zealand, and Ireland was published in Government Information Quarterly. [31]
In September 2014, a book was published entitled Irresponsible Government: The Decline of Parliamentary Democracy in Canada. [32] The author is Brent Rathgeber, sitting as an Independent Member of Parliament in 2014 since his resignation from the Conservative caucus in 2013. He had formerly been a Progressive Conservative member of the Legislative Assembly of Alberta. In the book, Mr. Rathgeber contrasted the current state of Canadian democracy to the founding principles of responsible government established by the Fathers of Confederation in 1867. He examined the consequences of the inability or disincentive of modern elected representatives to perform their constitutionally mandated duty to hold the prime minister and his cabinet to account and the resultant disregard with which the executive now views Parliament. With this as context, Mr. Rathgeber devoted Chapter 11 to Withholding the power: Canada's broken Access to Information laws. He conveyed the opinion of Information Commissioner Suzanne Legault [22] that two of the most fundamental shortcomings of the present Act were that it was not updated to cope with either the impact of digital information technology or the increase in scale and complexity of government and the centralization and concentration of decision making. Another key problem is that the commissioner lacks the power to compel rather than only recommend the release of requested information that does not merit secrecy on the basis of limited, justifiable grounds, a power that exists in other jurisdictions including several Canadian provinces. To add to the problem, the list of exceptions available in the existing Act had grown much larger in recent years. Mr. Rathgeber reported the commissioner to have said that "Canada's access regime [was] so dysfunctional that the RCMP has actually stopped responding to access requests entirely, and the Department of National Defence has stated that it will require 1100 days to complete a single request it has been working on". He also noted "a growing body of evidence that government bureaucrats, and especially political staff, are conducting their business verbally, without retaining notes, or alternatively, are exchanging correspondences through private email addresses and/or employing digital devices that leave no trace". [33] The commissioner was reported to recommend that a reworked Act should correct the aforementioned shortcomings as well as extend the act to cover Parliament, including parliamentary administration, and ministers' offices, where much of the policy development and decision making regarding taxpayer dollars is done.
In September 2014, Canadian Press reported that a previously obscure Treasury Board directive in the summer of 2013 introduced a policy that required federal bureaucrats to consult departmental lawyers about whether documents should be classified as secrets. [34] Such decisions were formerly made by the Privy Council Office (PCO), the secretariat of the federal cabinet. After the policy change, the PCO is consulted in "complex cases only", a practice that was described as "outrageous" by professor Errol Mendes, a constitutional expert at the University of Ottawa and former Senior Advisor to the PCO. He stated that only the PCO is fully informed about whether a document has been prepared for — or seen by — the federal cabinet and is, therefore, eligible for exclusion. The effect of the directive was the suppression of a much wider range of documents, doubling the rate of complaints to the Information Commissioner, an independent ombudsman. Suzanne Legault, [22] the Commissioner incumbent in this period, expressed concern, describing the scope of the new basis for exclusion from release as "extremely broad", and failing to "respect fundamental tenets of freedom of information". Liberal Member of Parliament John McKay described his attempts to extract information required to make "independent judgments" in the fulfillment of parliamentary duties as "an exercise in frustration". Complaints were expressed also by news media as well as federal officers responsible for oversight, including the Auditor General, the Parliamentary Budget Officer, and the military ombudsman. Michael Ferguson (Auditor General) said that his attempts in early 2014 to audit public pension plans to evaluate their long-term health had been stymied by bureaucrats at Department of Finance and Treasury Board. Kevin Page, the Parliamentary Budget Officer during the period 2008−2013, stated that neither Parliament nor his office could obtain the information that it needed. He elaborated: "the government was asking Parliament to vote on bills without relevant financial information and were hiding behind the veil of cabinet confidence. This undermined accountability for Parliament and the accountability of the public service." He concluded that the Act required a major revision. [35]
Freedom of information laws allow access by the general public to data held by national governments and, where applicable, by state and local governments. The emergence of freedom of information legislation was a response to increasing dissatisfaction with the secrecy surrounding government policy development and decision making. In recent years Access to Information Act has also been used. They establish a "right-to-know" legal process by which requests may be made for government-held information, to be received freely or at minimal cost, barring standard exceptions. Also variously referred to as open records, or sunshine laws, governments are typically bound by a duty to publish and promote openness. In many countries there are constitutional guarantees for the right of access to information, but these are usually unused if specific support legislation does not exist. Additionally, the United Nations Sustainable Development Goal 16 has a target to ensure public access to information and the protection of fundamental freedoms as a means to ensure accountable, inclusive and just institutions.
The role of information commissioner differs from nation to nation. Most commonly it is a title given to a government regulator in the fields of freedom of information and the protection of personal data in the widest sense. The office often functions as a specialist ombudsman service.
The thirty-year rule is a rule in the laws of the United Kingdom, the Republic of Ireland, and the Commonwealth of Australia that provide that certain government documents will be released publicly thirty years after they were created.
The Campaign for Freedom of Information is an advocacy group that promotes and defends freedom of information in the UK. It seeks to strengthen the public's rights under the Freedom of Information Act 2000 and related laws and opposes attempts to weaken them. It does this through campaigning, the publication of briefings and other reports and research. The Campaign also provides advice to the public and assistance to people challenging unreasonable refusals to disclose information, and runs training courses on freedom of information.
The Freedom of Information Act, 5 U.S.C. § 552, is the United States federal freedom of information law that requires the full or partial disclosure of previously unreleased or uncirculated information and documents controlled by the U.S. government upon request. The act defines agency records subject to disclosure, outlines mandatory disclosure procedures, and includes nine exemptions that define categories of information not subject to disclosure. The act was intended to make U.S. government agencies' functions more transparent so that the American public could more easily identify problems in government functioning and put pressure on Congress, agency officials, and the president to address them. The FOIA has been changed repeatedly by both the legislative and executive branches.
The Personal Information Protection and Electronic Documents Act is a Canadian law relating to data privacy. It governs how private sector organizations collect, use and disclose personal information in the course of commercial business. In addition, the Act contains various provisions to facilitate the use of electronic documents. PIPEDA became law on 13 April 2000 to promote consumer trust in electronic commerce. The act was also intended to reassure the European Union that the Canadian privacy law was adequate to protect the personal information of European citizens. In accordance with section 29 of PIPEDA, Part I of the Act must be reviewed by Parliament every five years. The first Parliamentary review occurred in 2007.
The Freedom of Information Act 2000 is an Act of the Parliament of the United Kingdom that creates a public "right of access" to information held by public authorities. It is the implementation of freedom of information legislation in the United Kingdom on a national level. Its application is limited in Scotland to UK Government offices located in Scotland. The Act implements a manifesto commitment of the Labour Party in the 1997 general election, developed by David Clark as a 1997 White Paper. The final version of the Act was criticised by freedom of information campaigners as a diluted form of what had been proposed in the White Paper. The full provisions of the act came into force on 1 January 2005. The Act was the responsibility of the Lord Chancellor's Department. However, freedom of information policy is now the responsibility of the Cabinet Office. The Act led to the renaming of the Data Protection Commissioner, who is now known as the Information Commissioner. The Office of the Information Commissioner oversees the operation of the Act.
Public records are documents or pieces of information that are not considered confidential and generally pertain to the conduct of government.
Freedom of information (FOI) in the United Kingdom refers to members of the general public's right to access information held by public authorities. This right is covered in two parts:
The Information Commissioner of Canada is an independent ombudsman and an officer of parliament of Canada who reports directly to the House of Commons of Canada and the Senate of Canada.
The Privacy Act is the federal information-privacy legislation of Canada that came into effect on July 1, 1983. Administered by the Privacy Commissioner of Canada, the Act sets out rules for how institutions of the Government of Canada collect, use, disclose, retain, and dispose of personal information of individuals.
The Official Information Act 1982 (OIA) is an act of the New Zealand Parliament which creates a public right to access information held by government bodies. It is New Zealand's primary freedom of information law and has become an important part of New Zealand's constitutional framework.
The Coordination of Access to Information Requests System, also known as CAIRS, was a database of freedom of information requests made to the federal government of Canada under the Access to Information Act. It was operated by the Department of Public Works and Government Services. It was created in 1989 to internally track requests, and eventually allowed for access to previously filed requests, previously released documents, and then current requests. By 2008, millions of documents had been made available through CAIRS. In 2001, Public Works spent Can$166,000 upgrading the system.
The Freedom of Information Act 1982(Cth) is an Act of the Parliament of Australia which guarantees freedom of information (FOI) and the rights of access to official documents of the Commonwealth Government and of its agencies to members of the public. It was passed by the Australian Parliament on 9 March 1982, and commenced on 1 December 1982.
Canadian privacy law is derived from the common law, statutes of the Parliament of Canada and the various provincial legislatures, and the Canadian Charter of Rights and Freedoms. Perhaps ironically, Canada's legal conceptualization of privacy, along with most modern legal Western conceptions of privacy, can be traced back to Warren and Brandeis’s "The Right to Privacy" published in the Harvard Law Review in 1890, Holvast states "Almost all authors on privacy start the discussion with the famous article 'The Right to Privacy' of Samuel Warren and Louis Brandeis".
Freedom of information in Canada describes the capacity for the Canadian Government to provide timely and accurate access to internal data concerning government services. Each province and territory in Canada has its own access to freedom of information legislation.
There is no absolute right to privacy in Australian law and there is no clearly recognised tort of invasion of privacy or similar remedy available to people who feel their privacy has been violated. Privacy is, however, affected and protected in limited ways by common law in Australia and a range of federal, state and territorial laws, as well as administrative arrangements.
New Zealand is committed to the Universal Declaration of Human Rights and has ratified the International Covenant on Civil and Political Rights, both of which contain a right to privacy. Privacy law in New Zealand is dealt with by statute and the common law. The Privacy Act 2020 addresses the collection, storage and handling of information. A general right to privacy has otherwise been created in the tort of privacy. Such a right was recognised in Hosking v Runting [2003] 3 NZLR 385, a case that dealt with publication of private facts. In the subsequent case C v Holland [2012] NZHC 2155 the Court recognised a right to privacy in the sense of seclusion or a right to be free from unwanted intrusion.
The Office of the Australian Information Commissioner (OAIC), known until 2010 as the Office of the Australian Privacy Commissioner is an independent Australian Government agency, acting as the national data protection authority for Australia, established under the Australian Information Commissioner Act 2010, headed by the Australian Information Commissioner.
The Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015(Cth) is an Act of the Parliament of Australia that amends the Telecommunications (Interception and Access) Act 1979 (original Act) and the Telecommunications Act 1997 to introduce a statutory obligation for Australian telecommunication service providers (TSPs) to retain, for a period of two years, particular types of telecommunications data (metadata) and introduces certain reforms to the regimes applying to the access of stored communications and telecommunications data under the original Act.
{{cite web}}
: CS1 maint: archived copy as title (link)