Government should close the gaps in information law

Stanley Tromp, Toronto Star, 23 Oct 2017

Last June, the Liberal government introduced Bill C-58, whose purpose is to amend the Access to Information Act, a 1982 law that grants Canadian citizens the right to view government records.

Reform is sorely needed for this law, which is akin to a rusted manual typewriter in the iPhone-Twitter age. But the hopes of transparency advocates were crushed by this partially regressive bill. Its most dangerous feature is to grant agencies the right to reject any request they call "vexatious" or "made in bad faith" - a poorly worded blank cheque that is strangely more "Harperite" than the former government would have dared, and one that surely will be used for political censorship.

The Liberals also broke their campaign promise to ensure the Access to Information Act applies to the offices of the Prime Minister and cabinet ministers. Yet the scope of the problem is much larger than that.

Over the years, Ottawa has been spawning wholly owned and controlled puppet companies to perform public functions and manage billions of dollars in taxpayers' money, all while claiming these are not covered by freedom of information (FOI) laws because they are "private and independent." This trend - which critics call pseudo privatization or information laundering - is quietly and adroitly defeating the entire purpose of the law.

This key problem is also missing from Bill C-58. Under most other nations' FOI laws, entities such as the Canadian Blood Agency, our nuclear Waste Management Organization, local airport authorities and others - many of them vital to our public health and safety - could never escape information law coverage as they do now. Why do we tolerate this?

MPs have been pleading this point for three decades, ever since cabinet ignored the 1987 all-party report called "Open and Shut," which advised that access to information coverage be extended to cover "all federal government institutions."

In the 2006 election, the Conservatives pledged they would extend the act's coverage to all organizations "that spend taxpayers' money or perform public functions." Once in office, prime minister Stephen Harper added a few foundations, and all Crown corporations and their subsidiaries, to the law's scope. Yet that was only a start, for in Canada, more than 100 quasi-governmental entities are still not covered by the Act.

The world access standard is to include entities at least 50 per cent publicly owned or performing public functions. The laws of Britain, France, India and New Zealand provide good models. Among our provinces, Newfoundland has partly caught up to the world with its reformed 2015 access law, in which these entities are covered: "a corporation, the ownership of which, or a majority of the shares of which is vested in the Crown."

Meanwhile, the global contrasts to Canada grow wider every year, a gap that would likely have embarrassed the father of our Access to Information Act, prime minister Pierre Trudeau. In 2006, an FOI law was passed in the Islamic Republic of Iran. Therein, the definition of a public body includes "each institution, company or foundation whose sole share, or more than 50 per cent of its share, belong to the state or government."

Coverage in the Russian FOI law includes records "created by organizations subordinate to public bodies," and the good Israeli FOI law covers all corporations that the state owns more than half. (On this point even Iran and Israel can agree.)

I am well aware that some such nations have appalling human rights problems and the laws may be poorly applied in practice. But it shows that global FOI standards have risen to such a level that even they endorse the principle, along with advanced democracies.

We should not study this problem for another 30 years. By stubbornly holding Canada back in such an insular, stagnant backwater within the FOI world, Prime Minister Justin Trudeau is placing our country's reputation for democratic process at risk. We can, and must, do much better, now.

Stanley Tromp is a journalist and author of Fallen Behind: Canada's Access to Information Act in the World Context.