Justin Trudeau should finish the job on access to information

Posted on September 26, 2017 in Governance Policy Context

TheStar.com – Opinion/Editorials – The bill now being debated 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.
Sept. 26, 2017.   By

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.

Similarly, the bill does nothing to close one of the most abused loopholes in our access regime. In recent years, so-called cabinet confidence has too often been used to keep politically inconvenient information secret. Federal officials have invoked this exemption with alarming frequency. In 2013-14, it was used a record 3,100 times – a 49-per-cent uptick over the previous year.

Of course, some limits to access to information are necessary both for security reasons and to ensure the open and frank exchange among ministers. But cabinet confidence has become an overbroad shield against disclosure. Canadians should have access at least to the facts and background that informed their government’s decisions.

Most important, the bill fails to extend the scope of the act to include the offices of the prime minister and his cabinet — one of the key recommendations advanced by a House of Commons committee last year.

The bill would instead require the prime minister, his aides and his ministers to “proactively disclose” certain information, such as personal expenses and travel documents. That’s a good step as far as it goes. But providing access to documents that ministers know in advance will be released is a far cry from the kind of openness promised.

Trudeau understood all this in opposition, but transparency is easy to fight for when it’s your rivals who will be exposed. The government has plenty of political reasons to stop halfway on access. But Trudeau is right that “open government is good government.” He should finish the job.


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