A cure for amnesia

For almost 40 years, the federal access-to-information system has suffered from chronic amnesia.

When passed in 1982, the Access to Information Act created a new parliamentary officer. The Information Commissioner of Canada was assigned the task of investigating complaints from citizens whose formal requests for information were denied, ignored or fumbled. The commissioner issues individual reports to requestors (and departments) on whether government officials violated the law.

But the Act prevented the commissioner from publishing those individual reports. And so for decades, there was no body of findings – precedents, if you will – to guide requesters and public servants about the proper application of the legislation. The commissioner could only issue annual reports citing a few select investigations. Special investigations on systemic issues were also published. And cases that went to Federal Court were necessarily put on the public record. But the results of thousands upon thousands of individual investigations were simply lost to the ether, inaccessible to citizens.

That institutionalized amnesia created a merry-go-round, with the commissioner needlessly re-investigating the same types of complaints hundreds of times and making the same rulings, wasting time and resources. Requestors and public servants could not look back into a historical database of case summaries to see what ground had already been covered and whether a complaint was likely to succeed.

Nova Scotia’s information review officer, the remarkable Darce Fardy, pioneered publication of his own rulings in the 1990s and 2000s. His case summaries protected privacy but laid out the essential issues as a body of informal jurisprudence for all to consult. The federal Access to Information Review Task Force, conducting the broadest-ever review of the Act, recommended in 2002 that the Act be amended to allow the federal commissioner to publish case summaries.

Like almost all of the task force’s recommendations, the proposal was ignored. Only in 2019, under Bill C-58, was the commissioner given the green light to publish – and only because she pressed for it, not because it was part of the government’s original amendments. (Case-summary amnesia has served the government interest by creating a kind of Groundhog Day, each new probe needlessly starting with a blank slate that can effectively delay the release of documents.)

Information Commissioner Caroline Maynard’s office has been steadily building an online body of published decisions. It’s no small task. Case summaries of investigations carried out since 2019 must be indexed, translated into both official languages and carefully vetted to protect privacy. There were almost 200 summaries in the searchable database when I last checked.

Not every case gets published. Only those considered to have “jurisprudential value,” where there are recurring issues or findings that could be applied widely, are posted, says spokesperson Josee Brouillette.

“In general, we do not publish results of investigations when the matters are straightforward or heavily fact-specific,” she told me.

Bill C-58 in 2019 also gave the commissioner order-making power, so the database has become especially relevant for departments wanting to avoid her embarrassing diktats. And a new Section 6.1 gave her the authority to overrule a department’s decision not to process a request that it deems frivolous. She also publishes Section 6.1 decisions, though without any reference to the department involved (or the requestor) since the law does not explicitly provide for publication of these cases. There are 13 posted so far.

Brouillette says there’s anecdotal evidence the new database is starting to have an impact. “For example, we have noted that increasingly, both complainants and ATIP units are referencing published decisions in their representations.”

The world of freedom of information has so few bright spots these days, we should celebrate every positive development. This cure for amnesia is one of them.

May 1, 2022