Freedom of Information

Freedom of Information

During the 1960s and 1970s citizens, as users of government services, began to feel entitled to certain rights arising out of their relationship with government. Initially, this was manifested in the growth throughout Canada of the institution of the OMBUDSMAN, generally designed as a mechanism to redress government wrongs and reduce the "red tape" characteristic of government bureaucracy.

Accessible to Individuals

Government information and its accessibility may be divided into categories. The first kind is concerned with access to government information about oneself stored in government data banks. Federally, this information became accessible to individuals in 1978, with the enactment of so-called PRIVACY legislation. Essentially, the federal government established an index of federal government data banks; individuals could apply to a given data bank contained in the index for access to information about themselves. The enabling legislation did, however, provide for a series of exemptions in categories such as national security, FEDERAL-PROVINCIAL RELATIONS, and ongoing law-enforcement investigations and others.

If the government invoked a "blanket" exemption, universally eliminating specified data banks from access, or an exemption in respect to an individual application, part or all of the information might be withheld, but individuals did have recourse to a privacy commissioner who could represent the interest of a dissatisfied applicant. If the decision of the particular government department remained unchanged, no further recourse was available. If information was provided and applicants believed it to be erroneous, the privacy commissioner could again come to their assistance; and if there was a refusal to change the information, at the very least it would be noted in the data bank that a request for a change in the information had been made and denied.

The legislation was amended in 1982, effective 1 July 1983, to allow a further recourse in the event of either a denial of information through the invocation of an exemption or a refusal to change allegedly incorrect information. If the privacy commissioner does not succeed in convincing the appropriate government department of either an entitlement or a change of allegedly erroneous information or both, there is now a right to have the matter reviewed, in camera, by a justice of the Trial Division of the FEDERAL COURT OF CANADA. A decision by this judge is binding on all parties.

Policy Information

The second kind of government information is what might be described as policy information, eg, anything contained in government files that contributes to the making of a government decision, including any decision relating to the enactment of either legislation or regulation or both (see OFFICIAL SECRETS ACT). This information may take the form of consultants' reports, internal studies, etc. Following a complex legislative history - which included private members' bills, a federal government GREEN PAPER, draft legislation by one government and subsequent legislation enacted by another government - the ACCESS TO INFORMATION ACT was finally passed in 1982 and took effect on 1 July 1983, chiefly as a result of strenuous lobbying by the Canadian Bar Association.

This "freedom of information" law entitles an individual to examine this kind of government information and it provides for the speedy provision of the information at reasonable cost. It establishes an information commissioner with a role and function similar to that of the privacy commissioner, and also provides for certain exemptions under which some or all of the information may be withheld. Again, an applicant may apply to the Trial Division of the Federal Court of Canada for a review, in camera, of the decision by government to invoke an exemption and withhold the information. One of the controversial features of the 1982 law is a section which provides that Cabinet documents, and in effect any other document referring to or flowing from Cabinet documents, fall outside the law. Such documents are not only unavailable but are also not subject to the review procedure.

Section 75 of the 1982 Access to Information Act (as well as s75 of the companion Privacy Act) requires a parliamentary committee to review the provisions and operations of both statutes. As a result of that provision, the Standing Committee on Justice and the solicitor general conducted a major review culminating in a report released March 1987. This report contained numerous recommendations addressing, for example, the nature and scope of the existing exemptions, the present exclusion of Cabinet documents from the ambit of the Act, a proposal to widen the accessibility of documents to include those relating to the operations of crown corporations, and a further proposal to shorten the time by which documents must be provided. It is anticipated that several of these and other recommendations will ultimately lead to amendments to the Act, in order to improve public accessibility to federal government documents. Many of the recommendations are in response to criticisms made by users of the Act during its first 3 years.

Some provinces have freedom-of-information laws and others have conducted studies on the subject, but generally provinces have not entered this field as deeply as the federal government.

Rationale

The main rationale for the enactment of freedom-of-information laws is that an informed citizenry must have access to government information in order to assess, evaluate and select government in an enlightened way. Secondly, presuming that knowledge is power, it is argued that citizens are entitled to share that power with government and are best able to do so with access to government data. The users of freedom-of-information laws, judging from the American experience, have tended to be investigative journalists, academics (particularly historians) and defence counsel.

The Act has generated approximately 2500 requests for information per year, many by so-called "information consultants." These are persons and firms who are in the business of - and who have gained considerable expertise in - making applications under the Act on behalf of the various users.