Reid was a member of the House of Commons from 1965 to 1984. He was Minister of
State (Federal-Provincial Relations) from 1978-79. He was appointed Access to
Information Commissioner in July 1998. This is a revised version of a
presentation to a Library of Parliament seminar on January 27, 1999.
Members of Parliament and
their staff from all parties have begun to use the Access to Information Act in
increasing numbers to assist them in determining what government is up to.
This article looks at various issues related to the Act.
The parliamentary interest in
the access law is, in my view, an entirely healthy development. However, the
reason for this interest is somewhat disturbing. In addition to the Oral
Question Period and proceedings in the House and Committee, the traditional
ways in which Members obtained information from the Government was through
written questions, starred questions and Motions for the Production of Papers.
Members have told me that the delays in obtaining information through the
traditional ways are such that they are being forced to use the Access to
Information Act. As a former Member of Parliament and one who had a
great deal to do with the traditional system in the early 1970s, I am saddened
to see that the former system has been allowed to fall into such a sad state of
disrepair that Members no longer see their route to government information
through the House of Commons as satisfactory.
Many will come to know first
hand what other access users-business and media users, have been experiencing
for fifteen years—a bittersweet mixture of exhilaration and frustration.
There is the exhilaration of knowing that power has shifted
significantly, as a result of this law; shifted from the state, from the
bureaucracy, to the individual, the private citizen. Access to government
records is no longer by grace and favour. It is a right. Important
information does get released; that is most exhilarating of all.
One of the important changes the
Access to Information Act has accomplished is a significant alteration
in the doctrine of Ministerial Responsibility. That doctrine is the
cornerstone of representative parliamentary democracy, but it had been clear
since the 1950s that the doctrine no longer reflected the real world.
Ministers had long ceased to be hands-on operators; instead they spend
increasing amounts of their limited time in Cabinet and Cabinet Committee
dealing with policy. The operational decisions largely passed to the
The Access to Information Act
has changed the accountability of players in the governmental system.
Now, since documents are available, one can find out where, when, why and
by whom decisions were made throughout the civil service. Consequently,
Civil Servants are now accountable for decisions they make under their own
authority where before it was the Minister who had to take responsibility.
Of course, the Minister still must take overall responsibility for
actions taken (or not taken) by his Department but he no longer takes personal
or direct responsibility for all actions taken by Departmental employees.
This significant change in the
relationship between Minister and Department is most important. It calls for a
cultural change within the government. It is taking place, slowly in some
cases, but in a good number of departments it has taken place. It has
taken place only when a strong Minister has determined that his Department will
obey the Access law.
Of course, legal justifications
for secrecy remain; there are thirteen to be exact. But the courts have
been consistent defenders of the principle that the law’s exemptions must be
interpreted in a limited and specific way. A recent clear example of the
Federal Court of Appeal’s resolve in this regard was when it ordered the
disclosure of a flight safety review report on the crash of a Nationair DC-8 in
Saudi Arabia, in 1991 which resulted in the deaths of 249 Nigerian passengers
and fourteen Canadian crewmembers. This crash was the worst airline
disaster in Canadian history. In ordering disclosure of the report, Mr.
Justice McDonald wrote:
I think it is also important not
to underestimate the public’s interest in disclosure and the positive impact
disclosure may have on the aeronautics industry. It should not be
forgotten that in passing this Act, Parliament has specified the important role
public scrutiny of government information plays in a democratic system.
Other judges have said the same
thing. The courts at all levels are powerful allies in access.
Only some twelve countries in
the world have had the courage to give this right of access to their citizens.
Even Great Britain, the mother of our parliamentary system, has not yet
had the courage to give its citizens a legal right to know.
There are other frustrations as
well. Principal among them is delay in receiving responses. Every
year, my office reports growing dimensions of that problem to Parliament; every
year the problem goes unchecked and every year the delays get worse. One
department may improve—with my office on its back. But delay will break
out somewhere else.
My predecessor, John Grace used
the strongest language appropriate to a Parliamentary officer to describe the
problem. He said:
Delay in responding to access to
information requests is now at crisis proportions. Given the clear and
mandatory obligations placed on government to provide timely 30-day responses,
the flouting of Parliament’s will in some institutions is a festering, silent
Mr. Grace was not silent in the
face of the scandal of delay and I have made solving this problem my first
I regret to say that requests
seen by some officials as in any way politically sensitive receive the slowest
treatment. More consultations are held during their processing, more
layers of approval are involved, briefing notes for ministers are prepared and
communication plans are developed prior to any response being given.
Requests from the members of opposition parties get treated as
“sensitive” requests and fall into the slow lane of traffic. Of course,
there is no justification for such treatment; the name of the requester and the
purpose of a request should be irrelevant. On this point, especially,
Ministerial aides take note!
Thus, we receive in our office
an increasing number of delay complaints from members of Parliament who use the
law. And, of course, after the long wait for the results of our efforts
to pry out a response (our investigations take, on average, four months)
records may come with exemptions applied. There then often follows
another complaint about the exemptions, another investigation, and another
frustrating wait. There may even be a court case before the sad saga is
over if the government does not satisfy either my office or the requester.
The access act is not for the impatient: it is a long-term investment.
But it can bring results.
I have no magic formula to end
all the frustrations of access users. What is needed along with some sensible
amendments to the law is a cultural change in government towards access to
information; a deep public commitment to the values of open government: a will
expressed at the highest level to make access work. Of course, opposition
parties will always like access more than the governing party.
Members of all parties have a vested interest in ensuring
that the right to know is strong. No party, after all, stays in power
There is no doubt that, when the
right of access is delayed, it is effectively denied. The Information
Commissioner should be given better tools to confront the problem of delay.
Those tools can only come from Parliament itself. My predecessor
has asked for limited order powers and sanctions to address delay problems,
powers such as the removal of a department’s authority to charge fees as well
as the loss of its authority to invoke any of the law’s discretionary
exemptions. That would be the price to pay for flouting the law. I
agree that those tools are needed; in fact, I am arguing before the Federal
Court of Appeal that some are implicit in the current law.
When I was interviewed by the
Standing Committee on Natural Resources and Government Operations for this
position, I said that after fifteen years of existence, the Access to
Information Act should be reviewed by a Parliamentary Committee.
Since taking office, my conviction has increased that his should be done.
The structure of the Access Act is sturdy, but after fifteen years, a
score of judicial decisions, and the practical reality of dealing with delays
and substantive questions, the time has come for Parliament to re-examine the
Act to improve it, to bring it up to date to meet the new challenges of the
I am supportive of the thrust of
John Bryden’s private member’s bill to revamp the access law. By keeping up
the pressure for a more effective law, Members of Parliament have a better
chance than do I of solving the problems which frustrate them. I am
grateful to all the members, those from Reform, Liberal and the Bloc who have
brought forward private members’ bills. And I am particularly grateful to
Madam Beaumier and all who supported her bill, to make it an offence to alter
or destroy records for the purpose of thwarting the right of access. A
powerful message has been sent to the government and to the public service,
about the high value members of Parliament place on the right of access to
Let me end on a positive note.
Even as we rightly deplore the rare instances of records alteration and
destruction, even as we lament excessive secrecy, inflation of fees, inadequate
searches for records and chronic failure to respect response times, we should
not lose sight of the profound difference this law has made in the transparency
and accountability of government. Dealing with access is a tough reality
for government. The law shifts to government the burden of proving that
secrecy is legitimate. The law is available to all at a very reasonable
cost—$5 application fee includes five free hours of search time. There
are no fees, of course, for making a complaint to my office. I am obliged
to investigate all complaints and, consistent with my staff of thirty-one
persons, I try to do so in a thorough and timely manner.
Do not lose faith in the Access
Act: it continues to pry out information which would otherwise never see the
light of day. Despite all the criticism, in its own sometimes faltering,
bizarre way, it is working. For any MP serious about obtaining necessary
information, it is better than Question Period or the Order Paper. But,
as I said earlier, that would not be too hard.
I urge those of you who are
users of the Act to be responsible users and to keep open, constructive lines
of communication with the departmental Access to Information Co-ordinators who
process your requests. They are not the enemy and you should not treat
them as such. If you do not like the results—be polite and come to my
office to have us take up your cause. To those of you who are on the receiving
end of access requests, who must help ministers cope with governing in a
fishbowl, be responsible and prudent. Resist the temptation to try to vet
all the access requests, which come to your minister’s department.
Otherwise, you will bring the system to a grinding halt and you will have
my investigators crawling all over you. Rather, let us embrace openness.
Insist that requesters be given timely service, send a message to the
public servants in the departments, that your Minister has the self-confidence
to make access work well in his or her department.