Government’s plan to improve Access to Information not enough, information commissioner says

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Information Commissioner Caroline Maynard is skeptical about the federal government’s new plan to improve its Access to Information system.

Announced by Treasury Board president Anita Anand last month, the “Access to Information Modernization Action Plan” outlines “operational and administrative improvements” to the system.

They include updating ATI courses, hiring new ATI professionals, providing guidance to institutions on managing requests and informing public servants on the consequences of obstructing the right of access.

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The plan also includes providing guidance on applying exemptions and exclusions, such as for Cabinet confidences, establishing a working group to “facilitate the processing of ATI requests for highly classified documents” and guiding employees on why it’s important to regularly re-assess the security categorization of records, seeing whether they can be downgraded or declassified.

As a major part of the plan, federal institutions are now expected to consider “the passage of time” when choosing whether to release historical records.

“This guidance essentially says that we are instituting time thresholds where none existed before,” Anand said in an interview, noting that the time period is 50 years for international affairs and defence records, and 30 years for those relating to federal-provincial affairs.

“We now expect heads of agencies to adhere to the time periods in the guidance when they are considering releasing historical records and, if that time period has passed, unless there is a probable harm of releasing the information, it should be released.”

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But in a news release issued by the Office of the Information Commissioner, Maynard said she viewed that the measures alone will not be enough to address “persistent issues that imperil the right of access.”

In a letter to Anand, Maynard said she was pleased to see issues such as staffing and retention, training and guidance on information management included in the government’s strategy — but found that the plan “lacks concrete commitments with measurable outcomes.”

“In the absence of strong leadership and governance, experience has shown that non-binding guidelines are insufficient in effecting the necessary change to increase government transparency,” Maynard said, adding that a number of the ideas and initiatives had been “recycled” from a 2022 government report but “with less ambitious target dates.”

Maynard, who has repeatedly called for reform of the access system, said in the letter that she was particularly concerned about the lack of actions and updates around declassification, noting that no progress has been made since a pilot project took place in 2021.

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While she saw the new guidelines on disclosing historical records as “an early step in the right direction,” there was a risk that any record within the time thresholds would be automatically withheld, she said.

“Through my investigations, I will monitor how institutions interpret the guidance,” said Maynard, who recently spoke out about her office facing a significant budget shortfall.

Any Canadian can request to access government records, such as emails, presentations, memos and reports, for a $5 fee. However, Canada’s ATI system has been described by many as “broken” due to delays and a lack of consequences for withholding or destroying records, or failing to comply with the Access to Information Act.

A 2023 House of Commons committee report made 38 recommendations on how to “overhaul” the Access to Information system, calling on the government to limit time extensions to 60 days and amend the law to allow for fines or penalties when agencies don’t answer requests on time.

The government’s plan is part of a broader “trust and transparency” strategy. Budget 2024 outlined $84 million in funding for the Treasury Board of Canada Secretariat and Library and Archives Canada to “maintain the Access to Information and Privacy regime.”

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Any legislative changes to the federal access law will only occur after the Act’s next formal review, planned for June 2025.

Maynard said changes to the Act are required now for Canadians to benefit from an access system that “meets the needs of the 21st century.”

“Without legislative changes, I have little confidence that the desired outcome of greater transparency and more records being released to Canadians will be achieved,” the commissioner said. “Given the lack of measurable objectives, I must remain skeptical of both the overall Strategy and the ATI Action Plan until I see evidence of quantifiable, measurable improvements to the access to information system.”

In an email statement last week, Anand said the government remained committed to transparency and openness amid an “unprecedented surge in misinformation and disinformation.”

She thanked the information commissioner “for her important work” but did not respond to comments about the new measures being deemed insufficient.

With files from Postmedia and the Canadian Press.

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