Social Policy in Ontario

The Liberal government’s proposed overhaul of Canada’s antique and out-of-order Access to Information Act is a modest step toward a more robust democracy, but it falls well short of the “open-by-default” approach Justin Trudeau promised on his way to power.

On the campaign trail, Trudeau made much of the democratic costs of opaque government. The Conservatives had grown “secretive and closed-off from Canadians,” he said. The Liberals promised something better, “a sweeping agenda for change” premised on “a simple idea: transparent government is good government.”

Bill C-58, which is now in its second reading in the House of Commons, no doubt offers something better. It is the first attempt to amend our access regime since the current law was passed in the pre-digital world of 1983. And it heeds a number of longstanding calls from transparency advocates.

The bill’s most significant measures would give much-needed teeth to the information commissioner. For instance, the legislation would allow the office to issue binding orders that would compel government departments and agencies to release information. Currently, the commissioner can only recommend the release of documents, and overturn a decision only by taking the government to court. This approach is backward at the best of times and has become increasingly impractical as departments have become less compliant.

The bill would also give the watchdog the power to force departments to disclose documents within certain timeframes. Delays have become all-too-common in recent years, undermining the ability of citizens to hold government to account. In 2015-16, only 64 per cent of the 75,400 requests received were completed within the mandated 30 days. The information commissioner’s new powers will hopefully mitigate this problem.

But the government’s proposed legislation hardly provides the promised and necessary “sweeping agenda for change.” As the Centre for Law and Democracy noted in a recent review of the legislation, Bill C-58 is “far more conspicuous for what it fails to do.” It should be fixed before it is passed.

For instance, the bill would allow the government to dismiss information requests that it deems to be “frivolous or vexatious.” As written, departments may well be tempted to interpret this loophole broadly, thus undermining Trudeau’s promise to be “open by default.”

Same goes for overbroad exemptions, untouched by the new bill, that allow departments to black out information. These rules are a common frustration of journalists who regularly receive what seem to be unnecessarily censored documents. New rules will force departments to give written justification for why information is being blacked out. But here again the promise of openness by default has gone unfulfilled.