Freedom of Information
Access to information is a legal right to review documents that are not already in the public realm. More than 120 countries around the world have freedom of information (FOI) laws. “The FOI phenomenon is not an end in itself,” Andrew Flinn and Harriet Jones explain in Freedom of Information. It “is intended to help make government institutions more accountable in an age when not only are they holding vast amounts of data and information, but technology gives us an unprecedented ability to identify, interrogate and analyze the data and information effectively … [FOI] is now generally viewed as a standard tool for increasing transparency and reducing corruption, and is widely perceived to be a basic right in any healthy, democratic system of government.”
FOI laws proliferated across the globe from the 1960s onward, although some countries such as the United Kingdom did not introduce legislation until 2000 (coming into effect in 2005). In Canada, public records were accessed on an ad hoc basis until the 1960s, though the informal policy was to release documents that were more than thirty-five years old, with the notable exception of military and diplomatic records. As early as 1965, an NDP MP from British Columbia, Barry Mather, introduced a bill calling on the government to produce FOI legislation. In the next decade, Progressive Conservative MP Gerald Baldwin took up the fight: in 1978, he led an all-party committee to call for legislative action. He also helped to establish an organization called ACCESS, which sought to unite groups and individuals in the cause of freedom of information. The Liberal Party included freedom of information in its early 1970s election platforms, but it was slow to act.
Tabled in Parliament in 1977, a Green Paper titled Public Access to Government Documents offered ideas for possible legislation. However, its authors insisted that too much disclosure would have a negative impact on state decision making, and they rejected judicial review of ministerial decisions regarding access to information. The Green Paper was vigorously denounced by the Canadian Bar Association.
By the end of the 1970s, freedom of information had become a prominent public issue. Prime Minister Trudeau proposed legislation in a 1978 Speech from the Throne, but it drew heavy criticism from bureaucrats and the deputy prime minister, who later claimed that it would cause massive administrative burdens. Minister of Justice Marc Lalonde was even said to have blocked attempts by John Roberts to introduce the bill because it would make the government too open to public scrutiny. By 1982, the government’s fear of public examination had overcome its interest in asserting a right to information.
When the federal Access to Information Act (ATIA) became law in 1983, Canada was only the eighth country in the world to have FOI legislation. The provinces and territories soon followed suit; Prince Edward Island was the last to enact legislation, in 2002. Provincial legislation covers a host of municipal and local state agencies, although many of Canada’s large municipalities also have their own FOI policies and coordinators. A few jurisdictions, including the federal government, have separate statutes for information relating to individuals (Privacy Act) and government documents (ATIA). Several provincial statutes, unlike ATIA, are also paramount to other statutes (ie. it takes precedence over all other statutes). Unlike France and New Zealand, Canada has not enshrined an access to information right in the Constitution.
Freedom of information legislation attempts to strike a difficult balance. In the past, governments arbitrarily denied access to public documents, and the judiciary tended to endorse almost any ministerial objection to access. Of course, the state has a legitimate interest in protecting information and in fact has an obligation to do so. However, every FOI statute in Canada is built on the assumption that citizens have a right to access public documents. For example, the BC Freedom of Information and Protection of Personal Privacy Act was founded on the principle of “giving the public a right of access to records,” and the ATIA “provides a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public.” As Canada’s Federal Court ruled in a decision on ATIA, “Parliament considers access to information in Canada and document retention as essential components of citizens’ right to government information” (Bronskill v. Minister of Canadian Heritage, 2011 FC 983 at para. 17). Access to information, according to the court, is integral to our democracy.
Exemptions to the right of access are required to be both specific and limited. In recent years, however, FOI laws have had the perplexing effect of engendering greater government secrecy. Since 2000, the percentage of cases in which Ottawa releases all the information requested has dropped from 40 percent to 16 percent. In addition, the number of requests that are completed within the mandatory thirty days has also fallen, from 70 percent to 56 percent. John Grace, the federal information commissioner in the 1990s, raised concerns at that time about what he dubbed a “culture of secrecy” in government. Clearly, this is not a recent development. Nor does it show signs of improvement. In 2013, both the BC and the federal information commissioners voiced their apprehensions about government secrecy.
Dominique Clément. “”Freedom of Information”: Implications for Historical Research.” Labour/Le travailleur 73 (Winter 2015).
Flinn, Andrew, and Harriet Jones, eds. Freedom of Information: Open Access, Empty Archives? London: Routledge, 2009.
Larsen, Mike, and Kevin Walby, eds. Brokering Access: Power, Politics and Freedom of Information Process in Canada. Vancouver: UBC Press, 2012.