Law Times

Law Times • June 19, 2017 Page 5 www.lawtimesnews.com Report raps delays on reforming access to information BY DALE SMITH For Law Times I n her annual report, Infor- mation Commissioner Su- zanne Legault says that the Access to Information Act continues to be used as a shield against transparency, while the government stalls on its prom- ises to reform the legislation. Lawyers who deal with the Act say that the impetus for change may finally come from reforms coming into effect in Europe. The 2016-2017 annual re- port by Legault says that she has some positive feelings about the year, with the removal of all fees related to access, apart from the $5 application fee, and the pledge to release all government information in user-friendly formats plus additional funding for her office to make progress on the backlog of complaints, but the optimism has waned. "Despite these constructive advancements and the hopeful tone I felt even into the begin- ning of 2016–2017, the year is ending with a shadow of disin- terest on behalf of the govern- ment," Legault wrote. "There is no direction from the head of the public service regarding transparency, likely meaning there will be minimal impact on the culture of secrecy within the public service. To top it off, institutional performance in relation to com- pliance with the Act is showing signs of decline, while Canadi- ans' demand for information increases." The report contains a sec- tion detailing promises by the current Liberal government, starting with a private member's bill that Prime Minister Justin Trudeau tabled in June 2014, which was followed by explicit promises around access reform in its 2015 election platform. While the government con- tinues to insist that it is working on legislation, it was reported in March that it was being post- poned to deal with consider- ations around "the neutrality of the public service" and "the independence of the judiciary." "The Information Commis- sioner is totally correct in her criticisms of the government in her report," says Alan Rid- dell, a partner with Soloway Wright LLP in Ottawa, who has litigated Access to Information cases at the Supreme Court of Canada. "The Act certainly is outdat- ed and it certainly does contin- ue to be used as a shield against transparency. The lengthy de- lays that the public currently encounters in trying to obtain information from the Canadian government is scandalous," he says. Riddell says that it follows along with the same principle as justice delayed being justice denied. "That applies just as much to Access to Information requests as it does to any other aspect of the law," he says. "If you have to wait months and months, if not years and years, which is commonly the case, to get access to govern- ment information, it effectively defeats the entire purpose of the Act." The Act hasn't been updated since it was first passed in 1983, which makes it woefully out of date for the current reality. "In the era of technology, the whole world is changing, and the law hasn't kept up with modern ways of communicat- ing and recording information, and information management," says Nancy Bélanger, general counsel for the Office of the In- formation Commissioner. "As you can see from our report, the law continues to be used to deny access. Access de- layed is access denied." Bélanger notes that while the Office doesn't differenti- ate about the person who has requested documents, and that some requests are clearly liti- gious in nature, the right of ac- cess remains universal. Riddell says that when the Act was first debated, there was a recognition that requests be dealt with expe- ditiously and that failure to re- spond to requests in a manage- able time frame would frustrate the whole purpose of the Act. Kris Klein, an information and privacy lawyer with nNova- tion LLP in Ottawa, notes that annual reports from commis- sioners all have the same mes- sage but they are limited in what they can do to get politicians in- terested in fixing the Act. "It is interesting that political parties all put in their platforms that they are going to reform ac- cess and privacy, and once they get into power, they get distract- ed and it falls by the wayside," says Klein. Riddell says the fact that the government has not yet lived up to its commitments on Access to Information reform is very dis- couraging. Klein says this doesn't just impact access to information and that "the other side of the coin that is also affected is the privacy side." "[I] know that the privacy commissioner . . . has been ad- vocating for substantial reforms both in the private sector and in the public sector," says Klein. "I can't help but think that, eventually, their voices are going to be heard." Klein notes that on the pri- vacy side, upcoming legislation in Europe — the General Data Protection Regulation — will come into force in May 2018. "It prevents the f low of infor- mation from Europe to Canada unless Canada is deemed to be an adequate jurisdiction," says Klein. "I think this will be the ulti- mate impetus to getting access and privacy reform in Canada, because the Canadian govern- ment is about to be embarrassed by the Europeans telling us that we're an inadequate country." LT NEWS Kris Klein says federal information com- missioners have been limited in getting politicians interested in fixing the Access to Information Act. 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