As federal access law turns 30, advocates say it should cover Parliament

OTTAWA – The federal access to information law turns 30 this Canada Day as thousands of people frolick, sing and gaze at fireworks on the lawns of Parliament Hill.

But in an ironic twist driven home by the current Senate scandals, the institutions housed within the neo-Gothic buildings towering above today’s celebrants are not covered by the Access to Information Act.

Many advocates of transparent government are now calling for the law to apply to the House of Commons, Senate and cabinet — with appropriate exceptions to protect matters of parliamentary privilege.

“There is simply no justification for the ongoing exclusion of key elements of the government, their offices, or the people working within them from the scope of the Act,” says the University of Ottawa’s Canadian Internet Policy and Public Interest Clinic.

“Such ongoing exemption is antithetical to the very concept of open and transparent governance,” the clinic argues in a brief to Information Commissioner Suzanne Legault, who has initiated a dialogue on reforming the law.

“This is a strange anomaly, the exclusion of bodies essential to democracy from an access process designed to support and enhance democracy,” the Canadian Committee for World Press Freedom says in its submission.

“When parliamentarians, senior civil servants and court officers are protected from having to respond to access requests, they are freed from duties to accountability.”

The advice to Legault, an ombudsman for users of the access act, will be reflected this fall in her special report to Parliament on reforming the decades-old law.

Expanding the access regime to Canada’s political chambers is an idea Legault herself heartily supports.

“If Parliament is serious about transparency and accountability, it must not only proactively disclose more information regarding the expenses and allocations of parliamentarians, it must also subject itself to the Access to Information Act.”

The access law, which took force on July 1, 1983, allows people who pay $5 to ask federal agencies for records ranging from audits and expense reports to internal emails and briefing notes.

Like most 30-year-olds, it has grown considerably bigger — the act now covers more federal agencies, including Crown corporations Canada Post, Via Rail and CBC.

But many critics say the law suffers from a deep case of immaturity that belies its age.

Born in the pre-Internet era of file folders and hulking steel cabinets, the access law has failed to keep pace with public demand for greater transparency, critics charge.

Aside from Parliament, some 100 entities with federal ties — including Nav Canada, the Canada Health Infoway and large airport authorities — fall outside the law. Cabinet records are completely excluded from the act for at least 20 years. Exemptions in the law often mean very little information is released, even after a long wait. And Legault’s office must rely on moral suasion, lacking the power to order agencies to comply with the act.

Despite bold promises of reform in the 2006 election campaign, the Conservative government has shown little interest in reforming the law ushered in by Pierre Trudeau’s Liberals. The reluctance to do anything more than tinker is consistent with the stand-pat approach of the Mulroney and Chretien administrations.

Once a world leader in freedom of information, Canada’s law has fallen into a tie for 55th place — ahead of Angola but behind the Slovak Republic — on a list of global rankings compiled by the Halifax-based Centre for Law and Democracy.

“Canada’s well-documented shortcomings on a major human rights indicator should naturally lead Canadians to question how we got here. The answer is simple: we did nothing,” the centre says in its submission to Legault.

Arguments that subjecting public authorities such as Parliament and the judiciary to the provisions would harm the judicial, legislative or governing process “simply do not hold water,” says the Halifax centre.

“In countries around the world — including less established democracies than Canada such as India, Serbia and South Africa — the law applies to all three branches of government, not only without any negative consequences, but with positive consequences.”

Canada’s Access to information Act already has exceptions specifically aimed at protecting any functions of these bodies that may need to be kept confidential, the centre says. For instance, agencies covered by the law can withhold records whose disclosure might prejudice law enforcement or reveal confidential advice from officials.

The London, Ont., chapter of the Progressive Librarians Guild told Legault the access law is a “kind of magic wand” that turns government institutions into something akin to public libraries.

“Somewhat sadly, we observe that the magic wand of the Access to Information Act has not touched the legislative or judicial branches of government. In the United Kingdom, by contrast, the parliament and judiciary are within the scope of the U.K.’s freedom of information act,” the chapter says in its brief.

“While Canadians can use the U.K.’s freedom of information act to learn about the U.K.’s parliament, the workings of our own Parliament in Ottawa is hidden by unreasonable walls of secrecy. We believe that the magic of the Access to Information Act should touch all the branches of government.”