Access to Government Information and Accountability
Access to government information is important in Alberta and Canada because:
- we have a right of access to government information;
- the accountability of the government is enhanced when citizens have access to many kinds of government-held information; and
- individuals with access to government information can influence government policy-making, because they will have an important position in the flow of information to and from the government.
Evolution of the Right of Access to Information in Canada
In order to develop the argument that Canadians have a right of access to information, it is helpful to provide a brief review of some of the political conditions that influenced the evolution of access to information legislation in Canada. A number of authors have written about the development of access to information legislation in Canada (see, for example, DC Rowat ed, The Making of the Federal Access Act: A Case Study of Policy-Making in Canada (Ottawa: Carleton University, 1985). Canada’s unique history has affected our perceptions about the relationship between the government and the people. Both Britain and the United States have influenced Canada’s development in the area of access to information, among other things.
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Canada inherited the British tradition of parliamentary sovereignty, which supports the view that the Prime Minister and Cabinet are sovereign (supreme). The British tradition also holds each minister responsible for the actions of his or her department. Respect for parliamentary sovereignty does not particularly support a right of access to government information. When access to information legislation was first considered in Canada, it was believed that his would dilute the absolute responsibility of ministers for their department and thus make them less accountable to the public (Canada, Information Commissioner, The Access to Information Act: 10 Years On (Ottawa: Minister of Public Works and Government Services, 1994) at 4).
The British tradition also emphasized government secrecy. In Canada, we passed the Official Secrets Act, which was intended to control access to and the disclosure of sensitive government information. However, this Act was also applied liberally to prevent access to information that should have been public (Canada, Information Commissioner, The Access to Information Act: 10 Years On (Ottawa: Minister of Public Works and Government Services, 1994) at 4).
Because much of Canada’s legal tradition originates in Britain, it is perhaps not surprising that before Canada passed access to information legislation, we did not have a common law right of access to information (Canadian Newspapers Company Limited v Manitoba,  2 WWR 673 (Man CA), leave to appeal to SCC refused 44 Man R (2d) 80n). There was no right of access to documents held by the executive branch of the government. The only proper way to obtain a document was to ask a member of the Legislative Assembly to question another member in the Assembly (Canadian Newspapers Company Limited v Manitoba at 689-90).
By way of contrast, the United States had a very different philosophical outlook about the role of government and first passed access to information legislation in 1966. Political philosophers followed in the United States, such as Locke, Blackstone and Dicey, supported the principles of popular sovereignty, meaning that the people held the sovereign power, which they delegated to the government (JC Smith & D Weisstub, The Western Idea of Law (Toronto: Butterworths, 1983, at 446-510). Even the opening words of the United States Declaration of Independence (1776) indicated that the signers believed that government derived its powers from the consent of the governed.
These contrasting attitudes towards sovereignty impacted Canadian politics, as there had been no revolution to break our connection with Britain, and yet we were attracted by American liberal and egalitarian ideals (Canada, Information Commissioner, The Access to Information Act: 10 Years On (Ottawa: Minister of Public Works and Government Services, 1994) at 3).
Canada’s attachment to our British traditions impacts our relationship with the government. These traditions emphasize our need for a strong state, and the respect of and deference for authority (SM Lipset, Continental Divide: The Values and Institutions of the United States and Canada (Canada: CD Howe Institute, 1989) at 2 [Lipset]). Historically, compared to Americans, Canadians complain less about those in authority, are less aggressive in demanding their rights and are more desiring of a strong paternalistic government (Lipset at 44). Generally, Canadians have been more respectful of status and authority than Americans (Lipset at 153).
The impact of these differences impacts our attitudes towards access to government information. Federal access to information was first introduced in Parliament in 1965, but it did not become law for 17 years (DC Rowat ed, The Making of the Federal Access Act: A Case Study of Policy-Making in Canada (Ottawa: Carleton University, 1985) at 7). Alberta and Prince Edward Island were the last two provinces to enact access to information legislation in 1995 and 2002 respectively. The passage of access to information laws across Canada provides Canadians with the right of access to government held information. The legislation provides the heads of government departments with a great deal of discretion to determine whether the information is subject to an exemption or whether it should be released. Further, much information remains secret. For example, Cabinet deliberations and advice to Ministers are generally exempted from release. Public participation (which includes access to government information) is generally given a relatively minor role in many administrative procedures and decisions affecting Canadians. A belief that those in authority (by election or by appointment) are the most qualified to make decisions, results in little direct decision-making power given to the general public. Finally, deference to authority could explain the relatively minor role that the public has when Canadian politicians are making policy decisions.
However, some believe that Canada is experiencing a shift in values, thus leading to less deference towards authority (N Nevitte, The Decline of Deference: Canadian value change in cross-national perspective (Peterborough: Broadview Press, 1996 [Nevitte]). They point to the general decline in confidence in government institutions (parliaments and bureaucracies) and a demand for meaningful participation, particularly among those aged 15 to 34 (Nevitte at 54-59). The traditional methods of public participation are not being used (Nevitte at 70). Instead, there has been a rise in protests, which could mean that Canadians will continue to demand more meaningful opportunities for participation (Nevitte at 104-106). It remains to be seen whether these developments will be reflected in broader access to information laws.
Finally, the entrenchment of fundamental rights and liberties in the Canadian Charter of Rights and Freedoms (Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]) impacted the courts and the government by shifting the balance towards openness in government. Access to information laws could be used to defend individual rights and thus strengthen democracy.
The Charter and Access to Information
The Charter does not specifically state that people have a right of access to information. (This is unlike other Constitutions that actually do set out this right; see, for example Constitution of the Republic of South Africa, 1996, section 32.) However, the Charter may provide Canadians with an implied right of access to government information. For example, it may be argued that Canadians require the right of access to information in order to exercise their right of freedom of expression under Charter subsection 2(b) or their right to vote under Charter section 3. They may also require a right of access to government information when government decisions might threaten their Charter section 7 right to life, liberty and security of the person. Finally, it may be argued that in order to receive equality before the law or equal benefit of the law under Charter subsection 15(1), Canadians may require adequate access to information. Each of these Charter sections deals with some aspect of public participation in government activities. For information about the content of these sections, click here.
Freedom of expression is a critical aspect of public participation in political decision-making. As stated by the Supreme Court of Canada in Irwin Toy Limited v Quebec (Attorney General),  2 SCR 712, and paraphrased by Cleaver et al (Handbook Exploring the Legal Context for Information Policy in Canada (Canada: Faxon Canada, 1992):
[T]he values and principles that underlie [Charter s. 2(b)'s] freedom [of expression] are that seeking and attaining the truth is an inherently good activity; [that] participation in social and political decision-making is to be fostered and encouraged...
In my reasons in RJR-MacDonald, supra, I stated that the ‘core’ values of freedom of expression include ‘the search for political, artistic and scientific truth, the protection of individual autonomy and self-development, and the promotion of public participation in the democratic process’ (p. 280).
In Toronto Star Newspapers Ltd v Ontario,  2 SCR 188, the Supreme Court of Canada stated (at paras 1-2):
- In any constitutional climate, the administration of justice thrives on exposure to light — and withers under a cloud of secrecy.
- That lesson of history is enshrined in the Canadian Charter of Rights and Freedoms. Section 2(b) of the Charter guarantees, in more comprehensive terms, freedom of communication and freedom of expression. These fundamental and closely related freedoms both depend for their vitality on public access to information of public interest. What goes on in the courts ought therefore to be, and manifestly is, of central concern to Canadians.
In Ontario (Public Safety and Security) v Criminal Lawyers’ Association,  1 SCR 815, a case involving allegations of police and Crown Attorney misconduct, the Supreme Court of Canada recognized that constitutional protection for access to information may be available in certain circumstances. The Court held (at para 5) that:
[a]ccess to documents in government hands is constitutionally protected only where it is shown to be a necessary precondition of meaningful expression, does not encroach on protected privileges, and is compatible with the function of the institution concerned.
Even as far back as 1938, the Supreme Court of Canada in Reference re Alberta Legislation,  SCR 100 recognized the importance of freedom of expression and public access to information (in this case, through the press), when Justice Cannon stated:
Under the British system, which is ours, no political party can erect a prohibitory barrier to prevent the electors from getting information concerning the policy of the government.....Democracy cannot be maintained without its foundation: free public opinion and free discussion throughout the nation of all matters affecting the state within the limits set by the criminal code and the common law.
Further, the Charter section 3 right to vote is most effectively exercised by an educated population. As stated by Malcolmson and Meyers (at 129), the primary purpose of the modern Parliament is to make the Cabinet accountable to the public for its actions. Parliament, then, plays a vital role in keeping the government sensitive to voters’ concerns. Voters must therefore be informed about the key issues in order to have effective input both during and between elections. One method of becoming educated about issues is to have sufficient access to pertinent government-held information.
Vincent Kasmierski argues that the scope of Charter section 3 should be interpreted to protect access to government information necessary to ensure that voters can make informed choices during the election process (“Something to Talk About: Is there a Charter Right to Access Government Information?” (2008) 31 Dalhousie Law Journal 351).
Access to information is also a key aspect of the Charter section 7 right to life, liberty and security of the person. Even before this right was entrenched in Charter section 7, the Courts repeatedly recognized the importance of public access to government-held information in order to ensure the proper operation of the principles of natural justice and the duty of fairness (See, for example: Scott et al v Rent Review Commission (1977), 23 NSR (2d) 504 (CA); Abel v Advisory Review Board (1980), 31 OR (2d) 520 (CA); Cadieux v. Director of Mountain Institution et al (1984), 9 Admin LR 50 (FCTD); Magnasonic Canada Ltd v Anti-Dumping Tribunal,  FC 1239 (CA); Sarco Canada Ltd v Anti-Dumping Tribunal,  1 FC 247 (CA); Canadian Broadcasting League v Canadian Radio-Television and Telecommunications Commission (1979), 29 NR 383 (Fed CA); Canadian Radio-Television Commission v London Cable TV Ltd,  2 FC 621 (CA)).
Once the Charter applied in Canada, the Supreme Court of Canada interpreted the meaning of “fundamental justice” (in the requirement that the right to life, liberty and security of the person not be denied except in accordance with the principles of fundamental justice) as being even broader than the common law requirement of natural justice (Reference re Section 94(2) of the Motor Vehicle Act (1985), 48 CR (3d) 289 (SCC)). The principles of fundamental justice are to be found in the basic tenets of our legal system, and involve the fair balancing of societal interests with the interests of the person claiming that his or her right to life, liberty and security of the person is being abridged (Cunningham v Canada (1993), 80 CCC (3d) 492 (SCC)). There are circumstances where people may argue that if they are not granted appropriate access to information, they are being deprived of their Charter section 7 right in a fashion that is not in accordance with the principles of fundamental justice (Newfoundland Association of Public Employees v Health Care Corporation of St John’s, 1998 CanLII 19037 (NL CA); R v Biever, 2015 ABQB 301 (CanLII)).
Martha Jackman states that access to information has a basis in constitutional law. For example, she states that Charter section 7 interests are at issue whenever Parliament and its delegates adopt and implement regulatory measures that affect the environment. Thus, regulatory decisions that threaten Charter section 7 interests “cannot be constitutionally valid unless the person or groups affected have had a meaningful opportunity to participate in the decision-making process” (Martha Jackman, “Rights and Participation” (1990-91) 4 Canadian Journal of Environmental Law and Practice 23).
Thus, a strong argument can be made that a procedural right of access to information is necessary in order for Canadians to be protected by or to exercise their rights under the Charter.
Access to Information Legislation
Legislation dealing specifically with access to information, and specific access to information provisions in other legislation also provide support for the notion that we have a right of access to government legislation. While there traditionally was no common law right of access to information, there are several legislative provisions the existence of which directly or indirectly supports the assertion that Canadians currently have this right. First, access to information legislation in the federal and provincial jurisdictions provides for a right of access to information. Second, the courts and various administrative tribunals have interpreted legislation so that their procedures provide a statutory basis for access to information. Finally, legislation dealing with other subjects, such as the environment, also contains access to information provisions, thus underlining the significance of this right.
Every jurisdiction in Canada has passed access to information legislation (These are listed in the appendix to this article). These laws clearly provide a statutory right of access to information. For example, the federal Access to Information Act states in section 2 that:
2(1) The purpose of this Act is to extend the present laws of Canada to provide 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, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.
Some argue that since these rights are merely provided in legislation, they could be easily taken away (e.g., by withdrawing or amending the legislation). Thus, the argument continues, they are not entrenched (firmly established and difficult to change, such as the provisions in the Charter). While it probably would not be politically expedient, Parliament or the legislatures could indeed withdraw access to information legislation. However, the fact that a right is not entrenched does not mean that the right does not exist.
The Supreme Court of Canada in Dagg v Canada (Minister of Finance) (1997), 148 DLR (4th) 385 (SCC) recognized the important public interest in allowing the public to follow the regulatory activities of government through access to information legislation at para 61:
The overarching purpose of access to information legislation, then, is to facilitate democracy. It does so in two related ways. It helps to ensure first, that citizens have the information required to participate meaningfully in the democratic process, and secondly, that politicians and bureaucrats remain accountable to the citizenry . . . Rights to state-held information are designed to improve the workings of government; to make it more effective, responsive and accountable . . .
The procedures for obtaining access to government information in Alberta or the federal government are available here.
Second, the courts and various administrative tribunals have interpreted legislation so that their procedures provide a statutory basis for access to information. For example, in Saskatchewan Action Foundation for the Environment Inc v Saskatchewan (Minister of the Environment and Public Safety),  2 WWR 97 (Sask CA), the Saskatchewan Court of Appeal (per Sherstobitoff, JA, writing for the majority) used a purposive approach to the interpretation of the Saskatchewan Environmental Assessment Act (SS 1979-80, c E-10.1) to find a statutory basis for granting the public access to the information at issue. The Court determined that the Act’s purpose was to engage the public in environmental protection. This necessitated that the public be empowered with a right of access to information that forms part of an environmental assessment. The Court emphasized that there must be meaningful public input into the environmental assessment process so that decisions made are more publicly accessible. Sherstobitoff, JA (for the majority) stated (at p. 111) that: “informed public participation is possible only if all participants are given full access to all available information except that specifically exempted by statutory authority.”
Finally, legislation dealing with other subjects, such as the environment, also contains access to information provisions, thus underlining the significance of this right. For example, some provincial and territorial jurisdictions, such as Ontario, the Northwest Territories, the Yukon Territory and Nunavut have passed Environmental Bills of Rights, which provide some statutory rights, including the right of access to information about environmental actions and decisions of the government. Canada’s Parliament, in Bill C-634, has introduced The Canadian Environmental Bill of Rights, which would provide for the “effective access to environmental information by making such information available to the public in a reasonable, timely and affordable, fashion” (s 10).
In weighing the public interest in disclosure of safety information, in R v Hydro–Quebec, (1997), 151 DLR (4th) 32 at para 123, the Supreme Court of Canada stated:
. . . [P]ollution is an “evil” that Parliament can legitimately seek to suppress. Indeed, . . . it is a public purpose of superordinate importance; it constitutes one of the major challenges of our time . . . the stewardship of the environment is a fundamental value of our society.
Thus, access to information legislation or access provisions in other legislation can affect people’s right to access to information.
Strengths and Weaknessness of Access to Information Legislation and Procedures
Now that we have examined whether there is a right of access to information, the nature of that right, the purpose of the right, and the effectiveness of the legislation or other means intended to recognize and fulfill the obligations required by the right, what are some concerns and about the effectiveness of the Canadian and Alberta legislation and procedures dealing with access to information?
Access to information is an integral part of public participation. In many government processes, such as the oil and gas process, the public needs to have access to comprehensive information in order to make informed judgments about and to participate in decisions about activities that will affect us.
It is clear that there may be some differences of opinion among the public, the government and private industry as to what “effective” access to information entails. For example, based on the citizen’s perspective, the literature suggests that the key elements of effective access to environmental information include: adequate notice of opportunities for participation and of the information available; meaningful and fair opportunities to participate in the form of adequate information disclosure at every stage of the oil and gas process; adequate funding for participation; timely receipt of the information and sufficient access to the courts where necessary to uphold these elements. Further, “effective access to information” includes both the method and result of exercising the right of access to information.
Generally, as access to information legislation has developed, there has been room for improvement in the legislation and procedures. Further, there are different strengths and weaknesses in various legislative systems. Nevertheless, some generalizations can be made.
One overarching problem with procedures for access to information legislation is their overwhelming complexity. There are several steps and stages involved in access to information procedures:
- First, the information needed to determine whether a process provides for public participation and access to information is available only in policy guidelines or regulations, which are not particularly accessible by the public.
- Likewise, in determining whether a particular body is subject to an access to information request, one must do a considerable amount of research and possess a considerable amount of comfort with legislation, schedules to that legislation and regulations—this is assuming that the citizen is aware of where the information might be located.
- Second, the processes vary from jurisdiction to jurisdiction, which affects the amount and type of information that is needed or available.
- Third, there is the difficulty of determining which legislation applies to a particular activity. There are a number of pieces of legislation in Alberta, for example, that deal with various aspects of environmental assessment.
- Fourth, there is the question of how one participates in the process and where one obtains the information. Then, there is the difficulty in interpreting the documents prepared by proponents or responsible authorities and the cost involved in securing expert advice to interpret the information.
- Finally, the public needs to understand the appeal process and when one is able to go to court to challenge a decision. In many cases, the public needs to be “directly affected” to participate in the process at any significant level.
Clearly, for the public to have effective access to information, there needs to be intensive public education about these complicated processes.
The second overarching problem with access to information in many government processes is the role of Ministerial or governmental discretion. The respect for and availability of the exercise of ministerial discretion many stages of these processes significantly erodes or overrides the efficacy of public participation. The following examples are troublesome areas where too much ministerial or governmental discretion may be present:
- when determining under the access to information legislation whether fees can be waived;
- by not vesting the federal Information Commissioner with anything more than powers of recommendation;
- when determining the manner and form that disclosure will take place;
- when determining whether a refusal to disclose information was reasonable;
- when determining whether information can be confidential;
- when determining whether a decision on an application may directly or adversely affect the rights of a person, so that he or she might participate;
- when determining whether parties will be awarded costs and how much;
- when making the final decisions regarding projects (e.g., whether they should proceed or whether further review is needed);
- when determining whether a review panel is needed, when selecting decision-makers for a review panel and when setting the terms of reference for the decision made by the review panel;
- when deciding whether participants are entitled to funding and how much; and
- when determining whether information should be released in the public interest under the access to information laws.
Thus, although the public has the right to effective access to information some government processes, the existence of discretion may serve to dilute or eradicate the efficacy of the public’s impact upon ultimate decision-making. Perhaps the amount and scope of discretion should be circumscribed.
A third overarching problem is the number of exemptions from disclosure of information. Indeed, most, if not all, of the exemptions from disclosure in access to information legislation focus on human economic or privacy concerns. Many argue that economic concerns outweigh basic human rights in some of the mandatory exemptions (e.g., trade secrets or confidential information). More recently, environmental protection and assessment legislation deal with access to information largely in the context of human participation in decision-making, and do not directly discuss the benefits of access to information to the environment. Further, although there are public interest override clauses in some access to information legislation, these usually require the government department to weigh the potential economic loss or harm to third party suppliers of the information or others against the public interest in disclosure. Finally, although information about significant effects on the environment must be disclosed, the emphasis in the public interest override clauses is upon public health and safety. It appears that the focus of many aspects of access to information legislation is upon economic values rather than general public or environmental goods.
There are some real and potential strengths for effective access to information government processes.
- First, some legislation contains improved recognition of the desirability of public participation.
- Second, some private proponents have developed an informal consultation process, which seems to be netting some very positive results in terms of access to information.
- Third, the existence of the public registries of environmental information, such as those provided for in Environmental Bills of Rights, is a positive development. While registries may be flawed, they can be built upon and audited to ensure that the information available is going to support effective access to information in the process.
In sum, as noted by Robinson in 1982 (Canada. FEARO Occasional Paper No. 10, Environmental Impact Assessment: Government Decision-Making in Public (October 13, 1982, R. Robinson) at 10-11):
When a broad range of interests is well represented and ample opportunity is provided to influence government decision-making, the results can be very good. On some occasions, under pressure to move fast and make use of a strong mandate on a given issue, officials are unable to engage in a broad consultative process. Speed and efficiency are the watchwords. I have nothing against speed in the decision-making process but if it is achieved at the expense of giving insufficient weight to other legitimate values, and perhaps, ignoring, for example, long-term environmental damage, then such decision-making is not really efficient.
Informal Methods of Access to Information
Any discussion of access to information legislation would be incomplete without some recognition of ways that one can obtain government information without using official methods. In some cases, the information is publicly available (e.g., on websites or otherwise). In others, the media (which is actually one of the biggest users of the official access to information legislation) may have made the request and published the results.
A call to the information and privacy coordinator of a particular government department may yield results without going through the official process. Of course, if you do not obtain the information desired, you have no official recourse and will have to make an official request. Consultation processes initiated by private companies may also include information disclosure.
Valid Limits on Public Rights to Information
The desirable limits on the general right of access to information must be considered. Most people recognize that in any democracy there are competing rights that must be weighed and reconciled. There are legitimate reasons for limiting access to government information. However, it is very difficult for legislators to determine the appropriate limits, and those who interpret and apply the legislation seem to struggle with balancing the various competing rights and interests.
Under the current access to information regimes, there are a number of circumstances where access to information is not available. Some of these are set out in exemptions or exceptions. Other barriers to access are not based on rights but are based on cost and interpretation factors, among others. Some of the exemptions in access to information legislation seek to address the following competing rights or concerns:
- respecting the confidentiality of other governments;
- maintaining relationships with other governments;
- respecting personal privacy;
- protecting trade secrets or confidential commercial information provided by third parties;
- protecting confidential commercial government information;
- protecting government security or defence;
- protecting law enforcement; or
- protecting cabinet secrecy.
It should be noted that often various government departments or agencies are permitted by the legislation to share information amongst themselves; they simply cannot release the information to the public. Also, some access to information legislation contains a public interest override, which permits the government to override exemptions or exceptions, such as personal privacy, and then release information if disclosure is in the public interest.
The above list contains some exemptions that are arguably easier to support than others. Many people likely support the notion that personal information should not be disclosed, unless there is a very good reason. On the other hand, some of the other categories of exempt information appear to be more self-serving on the part of the legislators, and less based on legitimate rights concerns.
Often this conflict between rights is characterized as one of “public rights” versus “private rights”. Because the rights of access to information, privacy rights, property rights, and environmental rights are not entrenched in the Canadian constitution, Canadian courts, tribunals and policy makers do not have much guidance when attempting to reconcile these sometimes competing rights. One method of reconciliation is to provide increased effective public participation in decision-making so that all interests may be appropriately considered.
Accountability and Access to Information
If citizens have a right of access to information, whether grounded in the Charter, access to information legislation, or both of these, this can enhance government (and perhaps private sector) accountability. The court, however, indicated in Canada Packers Inc v Canada,  1 FC 483 (TD), dismissed (1988), 53 DLR (4th) 671 (Fed CA), that the purpose of federal access to information legislation was not specifically to ensure accountability, but to provide access to information. This does not mean, however, that the ultimate effect of exercising one’s right of access to information could not result in improved government accountability.
Canada’s democratic system, a parliamentary democracy, has been referred to as “responsible government”, whereby the executive branch of the government is accountable for its actions to the democratically elected legislative body (P Malcolmson and R Myers, The Canadian Regime (Peterborough: Broadview Press, 1996) at 59. [Malcolmson & Myers]. Thus, our citizens delegate responsibility for public matters to a small group of elected representatives who are accountable to the people through elections (Malcolmson & Myers at 23). While responsibility is delegated, Canadians insist that the government be accountable to the electorate in a meaningful way (Malcolmson & Myers at 171, note 1). Those who are elected or appointed to political office must be accountable to the people for their actions and decisions (Malcolmson & Myers at 24).
Because governments are growing more and more complex, the traditional structures of communication and control are inadequate in a parliamentary democracy. Thus, other methods of ensuring accountability are slowly being introduced in Canada. These include holding referenda and passing legislation that permits constituents to recall their elected officials from office. Public consultation and participation may be used more in the preparation of public policy. Improved access to government information could reinforce the both the existing structures of communication and control and direct public participation in the policy making process (Malcolmson & Myers at 15).
Canadians appear to have become cynical about government, and are demanding greater transparency, more accountability and improved performance from the government—these goals may be achieved by providing more access to information and public participation opportunities (B. Speller, “Enhancing Public Perception of Parliament and the Legislative Process” (1994) Canadian Parliamentary Review 15 at 16).
Elections have been seen as very important mechanisms for ensuring government accountability. Access to information is essential to ensure that our elected representatives can hold the government to account between elections. Members of the legislature must have access to sufficient information to judge whether they continue to have confidence in the cabinet and prime minister. Access to information helps to ensure proper functioning of the day-to-day parliamentary process and parliamentary committees. Access to data from these, and other mechanisms of accountability, such as the work of Commissions of Inquiry, particularly between elections, are essential to ensuring accountability (Vincent Kazmierski, “Draconic but not Despotic: The ‘Unwritten’ Limits of Parliamentary Sovereignty in Canada” (2009-2010) 41 Ottawa Law Review 245 at 283).
While access to information from the government is necessary for accountability, ministerial discretion, which is a significant aspect of a parliamentary democracy, can create difficulties for effective public access to information. Thus, on the one hand democracy creates the right of people to have access to information; on the other hand, it also supports government discretion to conceal information. Because this discretion is exercised unevenly (i.e., some people have unfair access to government decision and policy-makers), it is more difficult to assert that access to information guarantees government accountability. Nevertheless, information can be a valuable commodity that a well-informed public can use as a means of power and influence (I Galnoor, “What Do We Know About Government Secrecy?” in Government Secrecy in Democracies (New York: Harper & Row, 1977) 275 at 293).
Having accepted the argument that accountability is important to Canadians, and that effective access to information is a very important tool in achieving this goal, it is necessary to look at the existing constitutional and legislative supports for the public’s right of access to information.
Access to Information and Policy Formation
The third rationale for increased access to information is its beneficial impact on policy-making in Canada. This rationale shifts from an analysis of the right of access to information to the practical use of information by the public in exchange for access to decision-makers and policy-makers. In Group Politics and Public Policy, (Toronto: Oxford University Press, 1992) (Pross), Paul Pross looks at government policy-making. Pross believes that Canada has experienced a diffusion of power through the entire government system due to the rampant expansion of government. Because of this factor, the government has delegated much responsibility to the administrative branch. The government is very hierarchical and bureaucratic, so each undertaking is divided into comprehensive and manageable units of work (Pross at 116-18). Within each major policy field there are sub-fields. For example, under agriculture, there are dairy farming, grain, egg and poultry sub-fields. Each sub-field has its own group of specialists who deliver programs and contribute to policy development. So, according to Pross, "the detailed work of administering policy is carried out by subordinate semi-autonomous or independent government agencies, each of which has close ties to groups representing the interests" (Pross, at 118) of a particular area. Because the state is the most prominent in the policy-making relationship, groups wanting to influence public policy have had to adapt themselves to its policy-making procedures.
Possession of technical or other valuable information is assigned a crucial role in Pross's model. Pross states that groups wanting to be influential in the policy community must share at least some of the attributes of bureaucracy. To be the most influential, a group must have a strategic place in the information flow, among other characteristics. Having a strategic position is not enough, however. The power of a particular group may allow it to have a say in policy development, but the impact of that contribution will depend on how well the group understands and exploits its strategic position. Expert knowledge of the policy field is very valuable, particularly if the group holds a monopoly or near monopoly on vital information. This type of information can be exchanged for access to decision-makers and for a continuing place in the information flow. If a group has access to key decision-makers, this shows that the policy community has acknowledged its power and considers that the group possesses vital information and the ability to persuade others to support or to abandon a cause (Pross at 143).
Pross's emphasis on information and its flow in the policy-making process suggests that access to information can be very important to effective public participation in the policy-making process. If individuals and groups wish to have a definite long-term impact on the policy-making process, they need to have access to that process. Thomas Rochon and Daniel Mazmanian agree that gaining access to the policy process is the most effective way for organizations to have an impact on policy incomes (See: "Social Movements and Policy Process" (1993) 528 Annals of the American Academy of Political and Social Science 72). This may be achieved if the group possesses key information and expertise.
Future Directions in Access to Government Information
There have been a number of advocates speaking out about the need for reform of Canada’s access to information system. See for example: “Canada is in Need of Serious Access to Information Reform”.
Recently, Canada’s Information Commissioner, Suzanne Legault tabled a report in Parliament called, “Striking the Right Balance for Transparency: Recommendations to modernize the Access to Information Act”. This report contained 85 recommendations for reforms to our system. The recommendations may be broadly categorized into those dealing with:
- extending coverage of the legislation;
- recognizing and supporting the right of access of information;
- addressing the culture of delay in responding to requests for access to information;
- maximizing disclosure by limiting exemptions;
- strengthening oversight of the process;
- publishing public interest information openly;
- providing for stiffer criminal and administrative penalties for violations; and
- mandatory periodic review of the legislation.
To this thorough list, I would add considering amending the Charter to include a right of access to government information.
Implementing as many of these recommendations as possible would seem to be a very positive future direction for Canadians in access to government information, and achieve the goal of enhancing government accountability.