At the time this
article was written Ken Rubin was a researcher specializing in the use of the
Access to Information and the Privacy Act. He is author of numerous reports on
these and other policy issues.
The Access to
Information Act was passed by the House of Commons in June, 1982 and proclaimed
July 1, 1983. The Act provides for a mandatory review of the provisions and
operations of the Act by a parliamentary committee.
This review will
be carried out by the House of Commons Standing Committee on justice and Legal
Affairs which will begin its hearings in May 1986. After over two and a half
years of existence, most independent observers agree the Act has not done a
great deal to open up federal records, although it has interested particularly
media reporting on certain federal activities. It has been used infrequently
with an average of about 3000 applications filed a year. The largest single
identifiable group of users are journalists who account for about twenty per
cent of all applications. Among the general public the act remains little
understood and hardly any effort has been made to publicize its existence.
The Act provides
for an Information Commissioner to consider complaints and the most frequent
complaints are about time delays, unreasonable fees or broadly applied
exemptions. Complaints are in the ratio of approximately one to every ten
applications filed. The majority of applications do not result in full release
of information, some of which was available informally before the Act's
proclamation. Exemptions have been sought by 100 of the 142 federal agencies
covered by the Act; the most frequently used (cited in about one in five cases
subject to exemptions) are denials on the grounds of policy advice, commercial
information and personal information.
have been very minor users of the Access Act, although the number of House of
Commons members using the Act seems to be rising. The reasons for the
disinterest vary. There are many new MPs and some probably do not know about
the Act. In this Parliament many current MPs are from the party in power and
have easier access to government information than do opposition members. There
are also many former cabinet ministers in the opposition who either know how to
get information from the departments or are riot keen to see the Access Act
open their records on public business transacted during their administration.
Members have many demands on their time and they may find it easier to let
other Access Act users obtain data which they then use. One example of this is
when the Canadian Press, using the Act, obtained figures in September, 1985
about the awarding of outside legal work by several federal agencies.1 The
matter was then raised in the House of Commons. Finally perhaps MPs may believe
it is demeaning to their privileges as parliamentarians to have to acquire
information via the Access Act and upon denial to then have to appeal to a
servant of Parliament, the Information Commissioner.
This last point is
a difficult one to answer – should MPs be treated as ordinary citizens or do
they have special parliamentary privileges? Perrin Beatty, for instance, while
in opposition, found that the only way Revenue Canada would release some
program evaluation data to him was if he filed an Access Act request. The then
Revenue Canada access co-ordinator was on record as saying that the Act applies
equally to everyone "whether king or pauper."2
may find himself in the situation of complaining to the Information
Commissioner to obtain information public employees say the Act requires them
to obtain under the Access Act. In one reported case an MP complained about a
time delay in receiving three Veteran Affairs' evaluation reports.3
In another reported complaint an MP complained about the $300 fee charge and
required $100 deposit to obtain data on the Cinota gold mine proposal on the
Queen Charlotte Islands.4 The member considered the department's
reply "an abuse of the Act and an abuse of the rights of a member to
access information on behalf of his or her constituents". The Member did
not respond to the Commissioner's request that representations be made to her
why the fee should be waived in this case or, if he wished, for ail Members of
Parliament. The Commissioner dismissed both member's complaints as not
supportable under the Access Act.
There are some
obvious reasons why MPs should use the Access Act. Like journalists, they know
a good story and have their sources. Either the information sought under the
Access Act is obtained and used or if denied, the matter then can be brought up
in parliamentary debate. For example Ed Broadbent requested from the Department
of Finance the release of projections which show how employment will be
affected by spending cuts announced in the Minister (if Finance's economic
statement of November 8, 1984.5 The reply, was that the econometric computer
model was exempt because it is injurious to release in the financial interests
of the Canadian government (Section 18 of the Access Act) and because the model
is policy advice (Section 21). Mr. Broadbent then criticized the Minister of
Finance for such secrecy.
are not privy to the information and information resources a Cabinet Minister
has at his or her disposal and may want to take advantage of all avenues of
information release that can help their constituents and their careers. The
Access Act route can at times be quicker than the Written Order Paper (where no
legal time limits apply)6 or the informal route of calling up a Cabinet
Minister or departmental employee where the answers provided may be vague and
where no written documentation is provided.7
Members use of the
Access Act could increase if other information channels are restricted, if
parliamentarians' roles are strengthened under the powers for committees or if
the party research offices begin to collect information on certain topics using
the Access Act. However, MPs usually need a quick reply and the Access Act is
not fashioned to give them this. Furthermore an MP's office does not have
trained staff or a budget devoted to making Access Act requests.
Little is known
about whether Senators are users of the Access Act. Certainly a few Senators
like Senator Godfrey played a key role in promoting the Act as co-chairman of
the joint Standing Committee on Regulations and Other Statutory Instruments.
While presently excluded under the Government's terms of reference from any
direct role in reviewing the Access Act, Senators may have the necessary time
to become access users and nothing prevents them from examining the access
legislation's weaknesses and strengths.
At least one
territorial member has used the Access Act. Tony Penikett, when he was the
Opposition Leader in the Yukon sought, unsuccessfully, data on a Decima
Research public opinion poll.
parliamentary committees may have considered using the Act, they have usually
relied on their own questioning ability or their research resources to try and
get answers. Only occasionally have they used their right to subpoena certain
witnesses or order the production of further materials.
A recent case
illustrates how hard it can be for parliamentary committees to obtain
information. The Standing Committee on External Affairs and National Defence
was looking for information on eight existing NORAD agreements between Canada
and the United States as part of their examination of renewing that agreement.
The Canadian Defence Ministry refused to release these "classified"
documents although they had previously been provided to other Canadian parliamentarians.
The committee was able to find this information in Washington.9
committees have not always pressed for further information. The Standing
Committee on Justice and [ Affairs, for instance, received over 140 annual
reports oil access and privacy operations from federal agencies for 1983-84 and
1984-85. Instead of challenging the sparse data contained in these two sets of
annual reports and urging the responsible Minister to issue instructions that
access problems be reported annually, the Committee, busy with other tasks, has
not asked the President of Treasury Board to issue departments instructions to
improve information the committee will need for the 1986 review of the access
committee's roles are strengthened with House rule reforms it will be
interesting to see whether committees and their staff use the Access Act or
other of their information powers.
The Access to
Information Act does not cover disclosure of information on the public business
transaction of an MP, Senator, a Cabinet Minister, a parliamentary committee,
information prepared by, the Library of Parliament or political parties. Such
information is available to the public under the Access Act only if the records
are found in departmental files covered by the Act.
While there may be
validity to excluding the purely constituency and personal political records of
parliamentarians there is less justification for excluding records involving
public policy making and public expenditures. Parliamentary committees can and
do have portions of their proceedings in camera for steering committee business
or policy discussions with certain witnesses. If transcripts exist for such
meetings there is no time limit oil when they can be released. In June 1984,
John Reid's private member's bill (C-252) was passed to grant public access to
the 1940-45 records of the Special Committee on the Defence of Canada
Regulations (i.e. the impact of the War Measures Act) after they had remained
secret for 40 years.
The only current
way of getting at parliamentary records is to persuade those with the records
to release them, pass special legislation like C-252, rely oil leaks, or try to
use the Access Act to get part of the information.
It is ironic too
that while parliamentary records are excluded from the Access Act,
parliamentarians can find exemptions applied by public employees to
departmental records covered under the Access Act that, for instance, prevent
them from finding out about policy advice a public employee gave to a
It is often
overlooked that the Access Act is far from a non partisan tool because:
a) it highly
favours the Government in power as it presently is laden with exemptions and a
cabinet confidences exclusion system.
b) opposition parties
are normally going to make hay when abuses under the Act occur or when
politically useful information is released under the Act.
The Access Act can
prevent politicians from finding out about information developed by pubic
employees while allowing the public employees to protect their records and
control the day to day release of government records. It was devised mainly by
public servants and its operation is mainly run by them with rare ministerial
or parliamentary involvement. The directives Treasury Board and individual
departments develop are not reviewed by parliamentarians.
It must be a bit
worrisome, with information being one of the main businesses of the federal
government, for parliamentarians to discover that the Access Act is one more
shift of information power out of their hands into those of bureaucrats and
supremacy can hardly be obtainable when information is secreted from it and
boxed into the Access Act. Parliament created the Access Act and Parliament can
review it including the question of whether parliamentary records should be
covered under the Act. How parliamentarians handle this review role or their
role as users of the Access Act has not been given much systematic thought.
Hopefully, this article will raise some questions and provide some information
for discussion now that parliamentary review is only a short time away.
1. See the Globe
and Mail, September 12, 1985.
Citizen, March 18, 1984. There are also cases where ordinary citizens, such
as Professor Ernest Regehr of Waterloo University was given less information on
Canada's military sales abroad than that given to MP Nelson Riis in an 1985
3. Annual Report,
Information Commissioner, 1984-85, p. 83.
Citizen, November 14, 1984.
6. The new rules
place a limitation of four on the number or written questions a member can have
on the Order Paper at any one time.
7. The classic
case of how slow the Written Order Paper system can work was one of the late
Tom Cossitt's questions first placed on an Order Paper in June 1976 and finally
answered in June 1984 in answer to the same questions put by his wife, Jennifer
Cossitt when she entered the House in 1982. The data requested was about the
use of Air Canada passes by officers of the Canadian Transport Commission,
their spouses or travelling companions.
8. One agreement,
for example, dealt with the placement of American nuclear weapons in Canada in
the event of war.
9. See Ottawa
Citizen, December 5, 1985.