June 1, 2001

Submission to
Access to Information Review Task Force

Ad IDEM is an organization of lawyers who act for almost all major media organizations across Canada. It is dedicated to the protection and enhancement of free expression in Canada and abroad.  Its aim is to achieve this objective through public and professional education, advocacy and law reform initiatives, and cooperation with related professional organizations.

We welcome this opportunity to participate in a review of the principles underlying the Freedom of Information Act, and look forward to the opportunity to provide input into any draft legislation. For now, our suggestions will be general, in keeping with the nature of the exercise.

The principal concern we have is that the Act does not achieve its original promise. Canadians are entitled to timely access to information generated by their government at their expense. For a variety of structural and practical reasons, the system does not facilitate this timely access. In fact, it inhibits it. This appears to be especially so in the case of information which the media has already identified through its sources as existing, interesting, and important to public debate.

1. We note to begin that the incentives in the Act are the opposite of the Act's goals. A civil servant can be held accountable for improperly releasing information, but not for delaying or inhibiting its release. The resulting delay and frustration is inevitable. A civil servant should be encouraged to release information, unless there is a real risk of injury to an important interest. If a civil servant in good faith releases information that should have, in hindsight, been withheld, that person should be protected from liability. Deliberately misleading a person seeking access, or obstructing a requester's access should be an offence. Consideration should be given to a tax on departments that do not release information on time in accordance with the Act, and that tax should be payable directly to requesters.
2. There should not be categories of information that are per se exempt from access. There should be a public interest override on all exemptions. There should be greater use of an injury test for determining the release of information.
3. The government should consider mandatory or routine contractual provisions indicating that contracts will be open to public access. This will prevent later delays in access.
4. "Personal information" as a concept should be reviewed, with a view to limiting the information exempted. There is a cost to living in a society. That includes the fact that others are entitled to know something about you. The mere fact that a name is associated with data should not automatically bring access requests to a halt. The nature of the data must be taken into account, and whole categories of information ought not to raise red flags. Effort should be expended in determining what kind of personal data is problematic, with the understanding that the rest can be released.
5. The book setting out federal government data banks should be available online, and forms should also be available online to facilitate access requests.
6. There should be no fees for access, and reproduction costs should be minimized. Government data shows that the government spends approximately $20 million and recovers only $200,000 from fees. This demonstrates that the fees are simply a disincentive for citizens to obtain access, which is contrary to the philosophy of the Act. If there is concern that free access would inundate government departments with requests, this could be phased in so that patterns of requests could be discerned and accommodated more efficiently. If many applications come in for a particular kind of information, consideration could be given to standardizing responses, or making them electronic. Existing experience with the Act should make it evident what types of information are commonly requested and need to be accommodated. The cost of administering a fee system that generates so little revenue is probably itself unjustifiable. Those resources would be better aimed at providing requested access.
7. Crown copyright should be reviewed and possibly removed, to eliminate any impediments to redistribution of information created by the Crown and obtained through access to information. Encouraging this redistribution would require the government to publish its information on a timely and cost efficient basis, due to the potential for competition. Wider publication of government information would facilitate general access.
8. The rulings of the Information Commissioner should be binding on the government, thereby removing another level of delay in access to information.
9. The separation of the Information Commissioner and Privacy Commissioner should remain. It is important that current sentiment in favour of privacy, for example, does not obstruct advocacy within government for access to information.
10. There should be regular reviews of the Act. Consultation should bring different groups together to facilitate resolution of common concerns. Separate consultations can lead to difficulties in reconciling some positions which may appear to be in conflict, when they are not.

You may post this submission as you deem appropriate. We look forward to reviewing your final report.

Respectfully submitted on behalf of Ad IDEM,

Daniel Henry