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David Johansen

Canada's New Access Laws: Public And Personal Access To Government Documents, edited by Donald C. Rowat, Ottawa, Carleton University, 1983, 165 p.

This book comprises a series of essays written by Professor Rowat's graduate students at Carleton University in a special seminar on Canada s new access to information laws given in the winter term 1983. By that time the federal government and four of the provinces, namely: Nova Scotia, New Brunswick, Newfoundland and Quebec, had adopted an access law. In addition, in Ontario, a commission had recommended that a public and personal access statute be enacted. and this recommendation had been accepted in principle. though not yet acted upon, by the Ontario government.

A similar book composed of a series of graduate student essays and edited by Professor Rowat was entitled The Right to Know. The book first appeared in 1980 and was updated in second and third editions in 1981. That book contained a detailed analysis of the public access pan of the federal Bill, C43, which was subsequently amended and enacted into two pieces of legislation. the Access to Information Act and the Privacy Act. The present book's emphasis is therefore not on the federal legislation, but rather on provincial legislation.

The book is divided into two parts Part I is composed of three essays discussing the relevant federal legislation. One essay is devoted to problems concerning the implementation of the Access to Information Act and the likely consequences the Act will have for the information management function within the federal government. Another points to a number of shortcomings in the then existing Part IV of the Canadian Human Rights Act. These provisions have since been repealed with the coming into force of the Privacy Act. For instance, while Part IV of the Canadian Human Rights Act conferred broad rights of access to personal information contained in federal government files, it did not grant a right to judicial review of decisions to refuse access. Appeals could be taken by aggrieved individuals to a Privacy Commissioner who was given the power only to investigate and recommend disclosure, the ultimate power to decide resided with the appropriate minister. The essay rightfully points out that a very significant improvement in the new Privacy Act is the provision allowing for an appeal of the minister s decision to the Federal Court. A third essay outlines a number of concerns connected with the Privacy Act. The author notes that some of the possible problem areas may, in fact, never be barriers to access to personal information depending on how the relevant provisions are interpreted by departmental officials, the Privacy Commissioner and the courts.

The second part of the book consists of a series of six essays dealing with developments at the provincial level One essay is devoted to the access legislation in each of the tour provinces wh6 have thus far adopted such a law. In addition there are two essays discussing the recommendations of the Ontario Commission on Freedom of Information and Individual Privacy. The explanations of the relevant statutes are clear and concise. Positive as well as negative aspects of the legislation are pointed out.

The essay on Nova Scotia notes that among other things, that province was the first, Commonwealth jurisdiction to enact access to information legislation on November 1, 1977. Rather than adopting the American approach of a broad genera! principle of access subject to specified exceptions, the Nova Scotia legislation establishes a right of access to only certain categories of information subject to specific exemptions. The statute contains no provision for an independent review of ministry decisions concerning the release of information. Refusals to grant access can be appealed only to the Legislature, which is, of course, controlled by the government.

As pointed out in the essay on New Brunswick s legislation, that province enacted its Right to Information Act in June 1978, however. the statute was not proclaimed in force until January 1, 1980. The New Brunswick Act generally followed the American pattern of adopting a broad principle of public access subject to certain specified exemptions. The appeal procedure outlined in the New Brunswick Act differs from both the federal Act and that of Nova Scotia. It provides an applicant with two routes of appeal in disputed cases. He c, she may either refer the matter to the Provincial Ombudsman or to a Judge of the Queen s Bench. however. if he elects to go to the court and his request for information is denied he cannot then turn to the Ombudsman. Judicial review is thus the final step in the process. The essay provides several interesting examples of cases where, or, appeal to the court, information was ordered to be released.

The province of Newfoundland enacted its Freedom of Information Act in June 1981 to come into force on January 1. 1982 in terms similar to those of the New Brunswick legislation. The essay notes that the Newfoundland statute provides for an appeal to the provincial Ombudsman followed. it need be, by an appeal to the trial division of the Supreme Court of Newfoundland.

In Quebec, the relevant statute was passed in June 1982. but, the provisions creating rights of access had yet to be proclaimed in force when this book was written. Under the Quebec statute, a person who is denied access to information may appeal to an Appeal Commission. A further appeal may be made to three judges of the Provincial Court.

The essays on Ontario recount the story of the government s delay in introducing legislation after the Williams Commission's report was released in 1980. A Bill has not yet been introduced in the Ontario Legislature. Finally, the book contains a useful bibliography of a number of important publications concerning the subject matter of public

In summary, the book is easily readable and provides interesting information concerning selected aspects of the federal access and privacy legislation as well as a more detailed analysis of the. relevant existing provincial legislation.

David Johansen, Library of Parliament, Ottawa

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Vol 7 no 1

Last Updated: 2020-09-14