16 October 2020.
CLD has submitted initial input for the idea-generation phase of consultations hosted by the Government of Canada as part of preparations for Canada’s fifth Open Government Partnership (OGP) National Action Plan. The text of our submission is available below.
Centre for Law and Democracy
16 October 2020
Initial Input for the Idea-Generation Phase of Consultations
At this point in the consultation process, we are focusing on just two issues: 1) the need, finally, to conduct the full review of the Access to Information (ATI) Act that the Government of Canada has been promising both the OGP and its citizens for years; and 2) the nature of the consultative process, given that it will take place during the ongoing COVID-19 pandemic. We may broaden our focus in future rounds of the consultation.
Review of the ATI Act
Our main substantive priority for Canada’s fifth OGP National Action Plan is reform of the ATI Act. This is an area where Canada is significantly behind good practice globally, let alone represents better practice. The Act ranks an embarrassing 50th place out of the 128 countries with national ATI laws globally (see www.rti-rating.org), even taking into account the amendments enacted in 2019. Although Canada was once a leader in this area, international standards on ATI have developed and clarified significantly since the Act was first adopted in 1983, and Canada has simply not kept up.
The 2019 amendments did include a very welcome change, namely giving the Information Commissioner order-making power, something CLD has long called for. However, otherwise, the amendments were minor in nature, earning Canada only an additional three out of the 150 points on the RTI Rating, and therefore represent a repeated failure of the government to live up to their promises. These were first articulated by the Liberal Party in their 2015 election platform, which promised to substantially expand the coverage of the Act, then set out more expansively in Canada’s third, 2016-2018 OGP Action Plan, which promised “a full review of the Act, no later than 2018” and then in Canada’s fourth, 2018-2020 OGP Action Plan, which promised, once again, to “undertake a full review of the Access to Information Act”. Although a review was announced in June 2020, no substantive details or timeline for public consultations have so far been announced and it is clear at this point that Canada will not fulfil this commitment.
Very major problems with the ATI Act remain, of which the three most serious are:
- The coverage of the Act: It still does not apply to the Prime Minister and Cabinet, the judiciary, the legislature and a number of other bodies which are covered in better practice legislation.
- Time limits: Issues here include the absence of any requirement to respond to requests as soon as possible and, most seriously, the power of public authorities to extend time limits essentially indefinitely, which is roundly and almost routinely abused in practice.
- The regime of exceptions (exemptions and exclusions): Issues here include a number of exceptions which are overbroad from the beginning, a number of other exception which lack a harm test and the lack of a general public interest override for many exceptions.
All of these three issues were recognised as areas needing review in the 2018-2020 Action Plan.
It is now time for Canada to recommit to comprehensive reform of the ATI Act and, this time, actually to deliver on that commitment. Indeed, we believe this should be a key priority in the fifth National Action Plan. We also call on the government to make more concrete and ambitious commitments this time. A more detailed timeline for the process should be given and this should not just involve a review of the law but a specific commitment to table legal reforms in Parliament well before the end of the period of the Action Plan. Additionally, where these can help improve implementation of the Act, for example in the area of timeliness, a commitment should be made to introduce rapidly specific policy reforms while waiting for the law reform process to reach fruition. We will make more detailed recommendations on this in our next submission to this consultation process.
We assume that consultations around the National Action Plan will need to be exclusively digital in nature given the ongoing COVID-19 pandemic. Whereas in previous rounds regional consultations were held in person, we recommend that a number of dedicated thematic webinars, along with a more open-ended session to cover residual issues, should be held this time. The selection of thematic focus areas should be based on the issues which non-governmental stakeholders have consistently raised in past consultations, as well as new issues raised in this current initial consultation which attract a higher degree of interest.
We strongly recommend that one thematic session should focus specifically on the ATI Act, to include both law reform and improving implementation. Canada’s repeated promises in this area and its failure to fulfil them demand this. This session should not include open data issues, which have characteristically occupied pride of place in Canada’s OGP Action Plans. Although open data is technically part of ATI, since it represents a form of proactive disclosure, it raises very distinct issues and bundling this with a discussion about the ATI Act would at least distract from, and potentially overwhelm, the needed focus on that Act.