Truth or consequences
Like most newborns, the Access to Information Act had no teeth when it became law in 1983.
One section created a $1,000 fine for obstructing any investigation by the information commissioner (which has never been levied). Otherwise, public servants who violated the law faced no sanctions or penalties. It was like a Highway Act that imposes speed limits, but without fines, jail time or any other consequence. It just invites trouble.
Trouble soon arrived. The tainted-blood scandal of the 1980s led to the Krever Inquiry. The beating death of a Somali teenager by soldiers in 1993 led to the Somalia Inquiry. Both probes found that public officials destroyed, altered, tampered with, lost and withheld key documents. FOI expert Ken Rubin highlighted other violations in unrelated cases in the ‘80s and ‘90s. John Grace, then information commissioner, proposed in his 1996-97 annual report that the Act should include a prison term of up to five years for obstructing the right of access.
A Liberal backbencher decided to do something about it. In 1997, MP Colleen Beaumier from Brampton West-Mississauga tabled a private member’s bill. C-208 would impose jail terms up to two years and fines up to $10,000 on anyone deliberately obstructing access. “We must send a strong message that these acts of destruction will not go unpunished,” Beaumier told the House of Commons. She later told me she got minimal support from then-prime minister Jean Chretien, but that Reform party leader Preston Manning backed the measure. Her amendments became law in 1999.
The big stick, though, did not make the obstruction problem disappear. In 2008, the National Gallery alerted the RCMP to an incident in which sensitive government emails about an employee were deliberately deleted. An official was fired, and Information Commissioner Suzanne Legault conducted her own probe, advising the justice minister about the likely commission of a crime under the Beaumier amendments. After two years, the RCMP dropped its investigation and laid no charges, without explanation.
In 2009, an aide to Public Works minister Christian Paradis inappropriately blocked the release of a document I had asked for under the Access to Information Act. Legault’s 2011 report on the incident called it a clear case of political interference. She alerted the justice minister, who called in the RCMP. The Mounties dropped their preliminary investigation later in 2011 with no charges and no explanation.
Legault’s investigators found other evidence of interference by Paradis’ staff in other access requests, but nothing more was referred to the RCMP. To date, no one has ever been charged under the Beaumier amendments. Its deterrent effect is doubtful in light of these seemingly open-and-shut cases of obstruction. Establishing criminal intent apparently sets too high a bar for prosecution.
In 2019, amendments to the Act purported to add some teeth. The information commissioner was given order-making power, though in watered-down form. Her orders lack the legal gravitas of a Federal Court order, for example, so ignoring them doesn’t attract contempt-of-court charges. She has used this new power sparingly so far. It’s too early to judge the impact.
Treasury Board is currently conducting a legislatively mandated review of the Access to Information Act and its administration. Users of the Act complain about a “culture of delay” that stalls the release of documents (for 80 years in one extreme case). “Participants felt this culture of delay has become normalized due to a lack of enforcement or consequences for missing deadlines,” a report on consultations says. Some groups want administrative fines levied on institutions that flout the time limits set by the Act.
The Treasury Board review is essentially an inside job, so there’s little likelihood the public servants running it will propose ways to penalize themselves. Instead, we need public spirited parliamentarians like Beaumier to step up again and give the Act some real teeth.
Feb. 13, 2022
Note: A version of this blog also appears in the May 3, 2022, edition of the Ottawa Citizen.
