November 5, 2015
The Right Honourable Justin Trudeau
Prime Minister of Canada
The Honourable Scott Brison
President of the Treasury Board
House of Commons
Dear Messrs. Trudeau and Brison,
Let me begin by congratulating you on your recent election victory and your swearing-in yesterday.
Mr. Trudeau, I was thrilled to see you talk about open data and access to information as important goals of your new government. That you mentioned these in your first answer to a journalist’s question after being sworn in gives deserving priority to these central initiatives in any democracy.
I’ve been using and watching access in this country for a couple of decades, and do a report every year or so for Newspapers Canada on how governments are doing. As you must know, the federal government has not done well at all.
But as you are committed to change, I thought I’d pass along some of the things that I think need to be fixed to make the system work.
Just this week, I was on the phone with a federal access official about three requests I filed last spring, some of which I am unlikely to see a response to before next spring. I only mention this because it is emblematic of one of the biggest problems you have to solve; the amount of time Canadians are having to wait to obtain government records. The federal act is only one of two in Canada that allows for basically unlimited extensions of how long officials have to respond to requests, beyond the 30 days the law theoretically allows. If the act is to have any meaning, you have to fix that. The Information Commissioner has suggested a 60-day maximum with anything beyond that requiring her permission. For a large and complex organization such as the government of Canada, that seems reasonable.
But you won’t solve the chronic issue of delays just with some new words in the law. The words have to be backed by adequate resourcing of departments so they can process the requests in a reasonable period of time. More staff and more efficient processes are vital. I hear constantly about staff who are overwhelmed, chronic staff turnover, and horrible morale. You can start fixing this almost right away. You can also make sure that access coordinators in departments have full delegated authority to decide on requests, without interference from above.
I see you have already promised to give the information commissioner the power to order the release of records when requesters complain about how requests were processed. That’s good. The current complaint system is antiquated and gives the commissioner few real teeth other than the power to go to court. The commissioner herself has recommended this change and it’s long overdue.
What about other parts of the act? The exclusion for cabinet records needs to be converted to an exemption. I’m not saying genuine cabinet records shouldn’t be protected–cabinet secrecy is a foundational principle of our system of government–but at least give the information commissioner the power to review decisions on such records, so requesters can have confidence they are being denied access properly. The commissioner has recommended removing some records, such as background information, from under the secrecy umbrella. That’s a good idea.
The laundry list goes on. Let’s tighten up discretionary exemptions, such as section 21 for advice to government, so that officials have to show what harms will flow from release of records before they can deny access. Let’s get rid of fees; they raise little real money and can be a horrible barrier to access. I see you’ve promised to be rid of most fees, so I hope you do follow through on that.
The information commissioner has made many excellent recommendations for change in her report to Parliament Striking the Right Balance for Transparency, including some of what I have already mentioned, as well as things such as expanding the act to cover the Prime Ministers Office, ministers offices (something you too have promised), and a variety of agencies that are funded by the government or perform public functions, allowing anyone to file a request instead of just citizens or residents, adding a public-interest override that applies to all exemptions, and creating an offence for obstructing access requests.
And what about open data? You’ve promised to make sure it is released in open formats. Good. Government bodies have to stop releasing data to requesters in formats unreadable by data analysis software. This comes up in the Newspapers Canada report year after year. You can’t have truly open data without a requirement to release data in open formats. The ATI regulations need to be clarified to ensure they can’t be used as a reason to deny access to open formats for information already stored electronically.
I could go on and on; indeed many have. Most of this is hardly new.
It’s axiomatic among those of us who watch this file that parties tend to be hugely in favour of openness while campaigning, then discover the elixir of secrecy once in office. I am truly hopeful about the commitments you have made, and your desire to be accountable to Canadians, and hope that this time openness can prevail.
With your commitment, we can make access to information work, so it can fulfill the important role facilitating democracy as enunciated by the Supreme Court of Canada.
Associate Professor of Journalism
University of King’s College
Halifax, Nova Scotia