by Lisa Peryman

Freedom of Information in Canada

Since it was devised in the 1980s, Canada’s Freedom of Information law has not been significantly updated or reformed to reflect the needs of the data revolution. On the heels of the 250th anniversary of Sweden’s freedom of the press act last week, TVO’s The Agenda looks at the state of FOI law in Canada.

All three guests invited to discuss Canada’s Freedom of Information law on TVO’s The Agenda last night, with host Steve Paikin, agreed reform of the country’s legislation was long overdue.

“The system is in need of fixing, it’s definitely in need of reform,” the Information Commissioner of Canada, Suzanne Legault, told Paikin. Canada’s FOI framework, she said, ranks fairly low globally and needs to be updated to “account for new technologies, the new ways that the government is functioning” (which could pertain to the use of text messaging and personal instant messaging by public service employees on issues of public interest), as well as “citizens’ expectations in the world of the Internet,” which Legault noted had officially launched in 1983, the same year Canada’s Access to Information Act came into force.

As it’s currently written, Canada’s Access to Information Act “does not strike the right balance between transparency and secrecy,” she said.

According to Sean Holman, a former legislative reporter now with Mount Royal University, the act has served from the beginning to keep information secret. The act, he said, was designed to “protect the built-in secrecy in our political system,” which he said exemptions and exclusions within the act work to uphold. Holman explains:

“When I file an Access to Information request, the government can apply all of these exemptions and exclusions to ensure that I don’t get information that fits within certain categories and a lot of those categories relate to government decision making; in other words, why government has made a decision. The most important information we could possibly get from government – why it made a decision – is also information that the government, in the act, is often allowed to refuse access to.”

Those exemptions, Legault agreed, required review. At present, she said the application of exemptions are not limited by an end date and most are not subject to specific injury tests (the harm of the disclosure) or an overriding public interest test (whether the public interest against disclosure outweighs the public interest in favour of disclosure).

Jayme Poisson, an investigative reporter with the Toronto Star, told Paikin that while journalists and citizens could access, for example, health information via the Access to Information Act they might not be able to informally, reform was imperative.

“The laws that govern how we access government health records are old and desperately need to be modernized,” said Poisson. “And the system that supports it also needs more resources; it’s plagued with delays in part because we have Access departments that don’t have enough staff.”

Between 2014-2015, 68,193 Access to Information requests were filed and, of those, 65.1% were completed within 30 days (departments and agencies are required by law to respond within 30 days).

Another issue is the cost of processing requests. Federally, that cost is $5 per request, but, provincially, fees vary and can be prohibitive.

Poisson cited the example of an investigation she was working on concerning people with physical disabilities receiving government care in Ontario. A request she had made for access to reports of physical constraint would have cost her newspaper $50,000 to process.

Last year, commissioner Legault issued a report that contained 85 recommendations for FOI reform that she considered restrained in the number of recommendations it could have offered. Meanwhile, the government of Canada has announced it will undertake a first-tier review of the act and a more “fulsome” review in 2018.

Legault is concerned that the 2018 review will not be concluded in time to ensure significant amendments to the act before the next federal election.

View The Agenda discussion in full here.

Following its focus on freedom of information, The Agenda concluded the episode with a look at freedom of expression; in particular, the work of author Timothy Garton Ash, and his book, “Free Speech: Ten Principles for a Connected World”.

Freedom of speech, says Garton Ash, is like health: “You don’t appreciate its value until it’s lost.”

Free speech, he said, was under attack in Russia, China, Egypt, Turkey and in North America.

The latter, he explained, in part concerned political correctness and a trend in western universities to shut out or uninvite speakers that might offend or upset members of the student body in some way, a practice referred to as “no-platforming” [see: Safe spaces are not the only threat to free speech]

Universities, said Garton Ash, should be places that presented students with the “widest views possible,” including those that might be deemed offensive. That didn’t mean having the right to offend others, gave you the right to offend, he said, emphasizing a freedom of expression within a framework of “robust civility”.

Garton Ash also discussed the rise of Donald Trump in a U.S. media landscape that he said had lost its “middle ground where people can hear all the ideas” as opposed to “fiercely competitive news media” shouting “at each other in polarized ways.”

Watch the full interview here.

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