The diminishing of access to government information – and some things to do about it

Freedom of Information legislation (FOI), or Access to Information (ATI) as it is known at the federal level in Canada, was a pretty important addition to government accountability when it became law in jurisdictions across Canada.

The Supreme Court of Canada described freedom of information legislation as a pillar of our democracy that provides citizens with a right of access to government information. In a 1997 decision, Mr. Justice La Forest said on behalf of the entire Supreme Court: “The overarching 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.”

Over the years, however, this pillar of democracy has seen its base chipped away.

Two years ago Canada’s Information Commissioner Suzanne Legault complained that the federal government was “not the most transparent.” She talked about cuts to her office’s budget and told the CBC, “We are at a record low in terms of timeliness.”

A decade ago there was some room for optimism about changes at the federal level. In their 2006 election platform document Stephen Harper and the Conservatives criticized the federal Liberal government for failing to provide better access to government information. The Conservatives promised to implement changes recommended by the federal Access to Information Commissioner and, most important, to give the Commissioner powers to order the release of information similar to that which exists in some provincial legislation. After being elected, those promises disappeared.

The situation is no better in British Columbia where in a 2014 report the Information Commissioner found that the average response time for FOI requests had doubled. She reported that among public bodies the Premier’s Office was among the most likely to respond they had no records responsive to requests. The practice of not writing things down goes back to at least 2003, when Deputy Minister to the Premier Ken Dobell told a conference on freedom of information that he rarely wrote things down because they might be subject to an FOI request. The Vancouver Sun reported Dobell as saying, “I don’t put stuff on paper that I would have 15 years ago.” In her 2014 report BC’s Information Commissioner reiterated:

My office and other commissioners have long argued for a legislated duty for public bodies to document matters related to deliberations, actions and decisions. This requirement need not be onerous. As previously stated in my 2013 investigation report, “[t]he duty to record actions, decisions, and reasons is not merely a question of creating records for the purposes of openness and accountability, but also go to good governance, the state of information management and information holdings of government.

With all this in mind, what can people do about access to government information?

First of all, if you are thinking about a Freedom of Information request to the BC government, now is the time to send it in. It is less than two years before the next provincial election and, believe it or not, public bodies can stall an FOI request that long with extensions and appeals. If you definitely want something before the next election, ask for it now.

Second, if you want to see BC’s Freedom of Information legislation improved you now have a chance to tell the government. Every six years a legislative committee reviews the legislation and a committee has now been struck to do this work. Submissions must come forward before the end of next January. The review also deals with the critical privacy provisions of the legislation. More information on this review can be found here.

The CCPA made a submission to the last review and you can find a copy of that here.

Finally, if this issue is important to you, you can follow what the federal parties have to say about access to information. The BC Freedom of Information and Privacy Association is compiling information on this and you can follow it here.

Topics: Democracy, Election commentary, Law & legal issues