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Canada’s Access to Information Act Research Paper

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Updated: Jun 25th, 2020

Introduction

Access to information in the contemporary world has become a fundamental right for citizens of many countries across the globe. In the 21st Century, conservative regimes increasingly find it difficult to restrict the free flow of information in and out of their jurisdictions. The unprecedented advancement in information and communication technologies has forced a wave of policy formulation and implementation upon governments across the world to keep up with the pace. Citizens of traditionally conservative regimes can today access almost any kind of information at will. This desirable development can also be partly attributed to the adoption of policies, which allow unrestricted access to information. In Canada, access to information policy was adopted in the early eighties (1982-83) (Racicot, 2005).

Since then, there have been improvements to the policy, for example, the review that was conducted by the Access to Information Review Task Force in 2002. Therefore, the purpose of this research paper is to examine critically the report of the Access to Information Review Task Force released in June 2002 to establish the main players in its formulation and the extent of representation of their interests coupled with how well the policy has served to fulfill its intended goal.

Before the enactment of the Access to Information Act in Canada in 1982, there had been several events that had transpired which influenced its enactment. In 1977, freedom to information legislation was introduced by the then Secretary of State John Roberts, under the name Legislation on Public Access to Government Documents (Macintosh, 2012). This introduction set precedence for discussions on which form the access to information policy in Canada would take. The 1979 discussion paper was somewhat a reflection on the milestones that had been achieved since the indication of the need for freedom to information legislation.

The 1977 Green Paper and 1979 Discussion Paper sought to establish the best way to go about the issue by examining seven different options which include Parliamentary option, An Information Auditor, An Information Commissioner with Advisory Powers, An Information Commissioner with Powers to Order Release, Judicial Review, Internal review, and, a combination of all of the above (Racicot, 2005). Eventually parliament picked on a two-tier process for reviewing departmental decisions on access where at first level, an Information Commissioner is empowered to receive and investigate any type of complaint relating to obtaining government records under the legislation and this did not help, the commissioner or the applicant would ask a judge to review the matter (Racicot, 2005).

The Access to Information Act was eventually introduced in parliament in 1980 by the then secretary of state Honorable Francis Fox with the following primary goals; to achieve a more informed dialogue between political leaders and citizens, improve decision making, and enhancing greater accountability by the federal government and its institutions to the public (Racicot, 2005).

The Act was part of the effort by the Canadian government to adopt a knowledge-based society approach where it wanted to bestow a greater sense of responsibility to its populace. The Act received royal assent in 1982 and was enacted the same year but came into force almost a year later that is, in 1983. The main concern by the government at the time of the Act’s enactment, as voiced in the Discussion Paper of 1980, was that the access to information requests would overwhelm the government and as such, measures were incorporated in a transitional provision to avert any unnecessary pressure on the government (Racicot, 2005).

In the years that followed the promulgation of the Act, there were ambivalent reactions concerning the government’s reception of the Act (Racicot, 2005). These reactions informed the need to conduct a comprehensive review of the Act to take care of the shortcomings that had been singled out coupled with streamlining the act with the information access needs that existed at the time. This led to the review process that yielded the report that is under scrutiny by this research paper. The review was necessitated by the fact that the Act, been hardly reviewed. The Access to Information Review Task Force was established in August 2000 by the President of the Treasury Board and the Minister for Justice to carry out a comprehensive review of the legislative and administrative aspects of access to information in Canada (Zussman et al., 2001).

After a spirited effort, the report was ready in 2002 with 139 recommendations for the government and all relevant stakeholders (Access to Information Review Task Force, 2002). However, the government gave the report a cold reception on grounds that it involved so many insiders and as such, would only serve to weaken the Access to information regime (Berlin, 2013). In 2003, the chair of an ad hoc MPs’ committee, John Bryden, sought to overhaul the Act through a private members’ bill, Bill C-462, which died on the order paper (Berlin, 2013).

Similar bills have followed since then the first being that of Bill C-201 of 2004 Comprehensive Framework for Access to Information Reform of 2005, The Open Government Act of 2005 and Private Members’ Bills 2008 and 2009, among many others. However, nothing much has been coming from all these since Canada’s Access to information regime is still perceived as relatively backward to a date (Berlin, 2013).

Stakeholder Profiles

The Access to Information Act review process brought on board several stakeholders that fall into three broad categories, that is, government players, industry players, and other groups, which have stakes in the Access to Information Act. Each of the groups played an outstanding role in the review process in its respective capacity and mandate as prescribed by the guiding principles. In the category of government players, two advisory committees assisted the review task force.

The committees included the External Advisory Committee composed of individuals from outside the government but with relevant experience and representing a variety of interests and The Advisory Committee of Assistant Deputy Ministers, which consisted of senior government officials of the Canadian government (Access to Information Review Task Force, 2002). The two were expected to guide the Task Force by drawing from their experience and perspectives from their positions.

The Task Force falls in the category of government players, as it was constituted by a government agency. The Task Force played an important role in bringing together all the players and creating an environment in which it was possible to deliberate and consult on issues pertaining to the review process. At the beginning of the process, the Task Force instructed the Public Policy Forum to conduct a consultative round table process that yielded the much need information from other stakeholders and interest groups (Zussman et al., 2001). The consultative roundtable process was a comprehensive procedure that was accomplished after four roundtable meetings, which were conducted between 23rd May and 6th June of 2001 (Zussman et al., 2001).

The process involved setting up a website that allowed interested parties to access any required information and give feedback over the same. On another front, invitations were sent out to about 480 organizations and groups, which were seen as being relevant to the entire process. Telephone interviews were also conducted for individuals or groups, which were unable to participate via the website or roundtable talks (Zussman et al., 2001).

Through this undertaking, the Task Force was in a position to get the much-needed information from the particular interest groups and other stakeholders involved in the process. Its task was to ensure that all the suggestions from all quarters were considered and summarized into a coherent report at the end. The report does not mention directly the specific pieces of advice and guidance that were given by the two advisory boards. However, it can be deduced that these two groups had the role of ensuring that the review did not only succeed in giving recommendations at the end, but also that the recommendations given were relevant to the government, the people of Canada, and the external environment.

The External Advisory Board was expected to represent the public interest in the process. Its constitution was such that it could raise an alarm if the government attempted to impose its will on the whole process. By virtue of this position, the greatest benefactors of its advice and wisdom are the Canadian people. The Advisory Committee of Assistant Deputy Ministers, on the other hand, provided its guidance by keeping a close track of the implications that the recommendations would have on different government departments.

They represented government interests from all the other sectors. The two boards served to balance the research by the Task Force to make it sensitive to the needs of all. The category of industry players included publishers of government information and the media coupled with businesses and business associations. In the three groups in this category, each had its own interest to protect through the advancement of arguments that would place it at an advantageous position if things went it’s a way.

For example, the publishers of government information are charged with the responsibility of creating, managing, and releasing the information. This requirement places them as the people who face harsh criticism if free access to government information is not up to the required standards. Under these circumstances, this group takes the greatest amount of pressure from the public and any other body seeking to access government information. This aspect places them in a position where if given a chance like in the case of Canada, they must try to strike a balance between the requirements of various interest groups and their capacity to satisfy all the requirements.

Before the promulgation of the Access to Information Act in 1982, there were concerns that the government would not be able to handle the demand for access to information. This concern saw the legislators incorporate a transitional provision alongside the Act so that stakeholders such as publishers of the information could have ample time to transform the information accurately from the various forms in which it had been stored to easily accessible forms. The transition was crafted such older information was not immediately available to the public until after some set period. In fact, there were debates on whether information existing before the act could also be covered by the Act (Racicot, 2005).

This balance becomes important for in some cases, budgetary allocations may not adequately take care of the equipment needs of such groups yet policies that continue to put pressure on them continue to be adopted. This group stood to benefit greatly if the review process recommended an approach that would not give room for any form of excuses on access to information as its capacity would be enhanced to handle the increased requirements.

The stakes of the media groups in access to information qualified them to be among the stakeholders in this review process. In its quest to inform society, the media often finds itself in a tight spot with regimes that are restrictive on certain matters of government. The media bears a great responsibility to society since it serves as the watchdog of society on matters that affect the wellbeing of society members.

This responsibility forces the media to strive to ensure that at any point in time, it is in a position to inform society appropriately without being the government’s puppet. Their role in the process was to ensure that on top of being in a position to access and expose certain information to the public; media personnel who specialize in areas such as investigative journalism would be capable of carrying out their investigations freely. There are possibilities of the government allowing the media to access certain forms of information, but restricting their broadcast. Under such circumstances, the media would be gagged and its operations would not be different from media in dictatorial regimes.

Therefore, in the review process, the main interest of the media was to ensure that they could use the information accessed in their broadcast without attracting any lawsuits from the state or other interest groups. It would serve to increase media freedom in Canada if the review recommendations were favorable to this group of stakeholders.

Businesses and business associations are a vital ingredient for the success of any economy for such players drive and dictate the well-being of an economy. This assertion implies that players in the business arena will always seek to make the business environment conducive for further development of existing businesses and those in the offing. There has been a tendency of governments tending to take too much from businesses while at the same time claiming to be supportive.

Even in cases where governments are genuinely supportive to business stakeholders, they do so with full knowledge of the fact that more businesses translate to more revenues for the government. In access to information sense, the business fraternity, just like other stakeholders, had to strive to protect their interests. For instance, the review could recommend some measures that would force businesses to disclose sensitive information concerning their operations thereby exposing their secrets to competitors.

Such areas need to have checks and balances especially considering that businesses are increasingly obligated by legislation to publish some information publicly that was traditionally out of bounds for outsiders. In the review process, this group of stakeholders, therefore, sought to protect its interests by upholding its right of access to desired information while at the same time ensuring that too much was not asked of them. Their participation was important because access to information for businesses reduces bottlenecks in doing business, which encourages local and foreign investors to start new businesses or expand existing ones to the benefit of the economy.

The final group of stakeholders that participated in the process consisted of academicians who had interests in either access to information or governance. These stakeholders were involved in the process due to the knowledge they had concerning information access. This group of people, since their primary concern is the furtherance of research, their interest in the review process was to ensure that the right of access to information while carrying out research would be guaranteed.

Given that research studies sometimes may require access to vital government information, this group of stakeholders had to ensure that such information was available to them even if it is under some special arrangement that excludes the public. Since they were involved in the process in two capacities, viz. as an interest group and consultants, they had to ensure that their position as consultants would be preserved in later reviews. They would benefit from review by achieving a better atmosphere for research studies due to unrestricted access to any kind of information required. If the Task Force’s recommendations favored it, this group would not benefit alone because the studies carried out would serve to improve the well-being of Canada as a country.

International Comparison

The access to information policy of Canada, like in other countries that have adopted a knowledge-based approach society, sought to empower the citizens by allowing them unrestricted access to government information. In most cases, this unrestricted access is the case only in theory, but not in practice (Tromp, 2008). Canada was among the pioneer countries in adopting access to information policy over the years and attempts by different regimes to improve the policy have been in vain. This implies that the Act lags behind when compared to the same legislation in other countries.

The case has been however slightly different in the United States access to information policies took effect earlier than in Canada. The U.S. took on access to information policy in 1966 following the general need for the U.S. population to have access to government information after the Second World War (Tromp, 2008). The policy currently has four legislations under it which include Freedom of Information Act of 1966, Federal Advisory Committee Act of 1972, Privacy Act of 1974 and Government in the Sunshine Act of 1976 (Tromp, 2008).

The government initiated all these Acts to boost the information-intensive industries and the efforts have paid off. In Canada, two main legislations govern access to information policy (Macintosh, 2012). The difference of the two countries’ approach lies in fact that while the U.S. encourages its citizens to access the government information and enlightens the public of its availability, Canada took on a different approach where after the adoption of the Access to Information Act, the government did not make any effort to enlighten the public about it. There is goodwill in the efforts of the U.S. government as opposed to the case of Canada. Perhaps this could be the reason behind the notion that exists in the public domain that the U.S. is a land of freedom.

The U.S. access to information policy seems to have achieved its goals since it was aimed at empowering the citizens and any organizations, which depend on such information to conduct their business. This claim is attested to by the fact that in the U.S., information-intensive industries are thriving (Tromp, 2008). The Canadian government is different when it comes to matters of information access. It tends to give with one hand and take away with the other hand and as such information access has stagnated in Canada.

On another front, a comparison between Canada and Sweden’s access to information policy reveals that the Swedish legislation if far more elaborate than the Canadian one. This assertion holds due to the fact that although Sweden is touted as the grandfather of access to information policies, it has kept on improving access to make it better as witnessed in the formulation and adoption of the Public Access to Information and Secrecy Act in 2009 (Ministry of Justice, 2009). Canada has shown only half-hearted attempts to improve its Access to Information Act of 1983. The difference between the two countries is attributable to the fact that in Sweden, both the government and the public understand the benefits of freedom of information and thus support it fully.

Sweden occupies a unique position in Europe insofar as freedom of information is concerned. The Swedish government operates an open government policy, which seems to upset its EU counterparts. Canada’s access to information policy operates much like most of the countries in Europe but not Sweden. Governments enact laws to hoodwink the international community that they are proponents of open government but in a practical sense, most government records are inaccessible.

Documentary Policy Discourse Analysis

The Access to Information Act as adopted in Canada in 1983 sought to create room for a more informed dialogue between political leaders and citizens, bring about improved decision making, and ensure greater accountability by the government to its populace (Access to Information Review Task Force, 2002). For a period of twenty years, there seemed to be nothing much happening, which necessitated the formation of the Access to Information Review Task Force that gave its report in June 2002. The Task Force was to reviews all aspects of the Act and make recommendations on how it could be improved (Access to Information Review Task Force, 2002).

Concern was rising due to the fact that a virtual revolution had swept across the world-altering the way government information was created, managed, and distributed (Access to Information Review Task Force, 2002). In addition to this happening, the 9/11 terrorist attack on the World Trade Center in the USA in 2001 also made governments realize that some information could be released to the public and some information had to be restricted (Access to Information Review Task Force, 2002). The dilemma brought about by this realization was that the tenets of democracy still needed to be upheld.

The Task Force thus moved ahead with its duty and found out that the greatest impediments to the Act were administrative practices and attitudes exhibited by the public servants. There was a need to overhaul everything right from the creation and management of records to the training and education of the public servants (Access to Information Review Task Force, 2002). There was also a need to change how access to information that was not covered in the Act was handled.

The original Act was still seen as being relevant and thus it only needed a variety of changes to make it fit into the modern picture of Access to Information, an undertaking that would need a recommitment by all to the original goals of the Act (Access to Information Review Task Force, 2002). The Task Force eventually made a comprehensive list of recommendations that aimed at overhauling the entire Act. The recommendations represent a balanced approach to the whole issue of the review where almost all the concerns raised by stakeholders at the consultation stage were incorporated into the report.

The report, though comprehensive as it was, turned out to lean towards the government too heavily. In the government’s response to the report, the then information commissioner termed the review process as having involved too many insiders who seemed to have made a lot of input that would largely serve their interests (Berlin, 2013). The government stakeholders who participated in the review process seem to have had a heavy influence on the Review Task Force.

They thus took advantage of the influence to try to weaken the policy as initially constituted. They made only four recommendations, which espoused open access to information but counteracted them with seven conflicting recommendations that would serve to shroud prime government agencies in secrecy. Had the report been embraced wholesomely, the result would have been more restricted access to information policy that would play to the favor of the government’s secretive nature. This observation implies that it would have fallen short of the expectations of all the other stakeholders and would not have served the intended purpose. It can be deduced from this move by the government that even though it is perceived as being against a fully open government policy, it was still committed to ensuring that what had already been achieved remained to benefit Canadians.

Conclusion

The report by the Access to Information Review Task Force was a spirited attempt to overhaul the Access to Information Act as initially adopted in 1983. It involved adequate input from all necessary stakeholders as they endeavored to balance their interests in reviewing the Act. The main stakeholders in the review process included the Review Task Force, External Advisory Committee, and The Advisory Committee of Assistant Deputy Ministers as government players, printers of government information and businesses as industry players, and academics as representatives of other interest groups.

At the end of the process, the Review Task Force came up with objective recommendations that covered the interests of all groups adequately. Unfortunately, the government gave the report a lukewarm reception, which is the prime reason behind Canada’s backward position on Access to Information issues in contemporary times. If the review report were fully implemented, it would have changed so much for the better. Nonetheless, Canada still needs a proactive approach to the entire issue to achieve notable success in delivering unrestricted access to information for its populace.

Reference List

Access to Information Review Task Force. (2002). Access to Information: Making it Work for Canadians. Ottawa: Access to Information Review Task Force. Web.

Berlin, David. (2013). A Love Affair with Secrecy. Web.

Linton, M. (1993). Camera Access to Courtrooms: Canadian, U.S., and Australian Experiences. Canadian Journal of Communication, 18 (1), 15-16. Web.

Macintosh, J. (2012). Tantalus Unbound: Government Policy and Innovation in Canada. The School of Public Policy, 5(3), 1-48. Web.

Ministry of Justice. (2009). Public Access to Information and Secrecy Act. Web.

Racicot, M. (2005). . Web.

Tromp, S. (2008). Fallen Behind: Canada’s Access to Information Act in the World Context. Canada: Vancouver. Web.

Zussman, D., Averill, N., & Lépine, G. (2001). Report on Consultations to Review the Access to Information Act and its Implementation. Canada: Public Policy Forum. Web.

Works Consulted Canada. Telecommunications Policy Review Panel. (2006). Final Report. Ottawa: Telecommunications Policy Review Panel. Web.

Department of Finance Canada. (2012). Audit of the Access to Information Process. Web.

Office of the Information Commissioner of Canada. (2006). Access to Information Act Reform: Response to the Government’s Action Plan for Reform of the Access to Information Act: A Special Report to Parliament. Web.

Riley, T. (1987). Privacy in Canada: Some Comparisons. Canadian Parliamentary Review, 10(2), 6-9. Web.

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