To review or not to review

The Liberal government ‘improved’ the Access to Information Act in 2019, and users of the Act have been paying a price ever since.

The so-called reforms, made with no prior consultations, tilted in favour of secrecy.

So-called vexatious, bad faith and abusive requests can now be ignored. Records in ministers’ offices remain locked up except for a few select items of the government’s choosing, made available pro-actively (and therefore sanitized). The information commissioner has order-making power, but only a watered-down version readily challenged in the courts. Don’t get me started on the fee fiasco.

One positive, though, was a requirement that the law be broadly reviewed in a year. The 2019 amendments (Bill C-58) said the minister responsible for the Act, i.e., the president of the Treasury Board, must undertake the review within a year of the changes coming into force.

The review did begin in June 2020 and has been plodding along ever since, missing deadlines, with poorly designed and executed consultations, its internal processes secret and censored. A report may emerge by the end of this year, almost a year past deadline. It will be an inside job, reflecting the concerns of the public servants who controlled the review.

But there was another, separate review built into the 2019 amendments to the Act. A committee of Parliament “shall undertake a review of this Act within one year after the day on which this section comes into force” [Section 99.1]. The clause was heartening to users: here was a chance at an independent assessment of the Act, without government oversight. A legal guarantee of a forum in which citizens’ voices could be heard.

The committee’s membership wasn’t specified in the law. It could be formed in the House of Commons, or in the Senate, or with sitting members from both. The most obvious body to carry out such a review is the so-called ETHI committee of the Commons. That’s short-form for “Standing Committee on Access to Information, Privacy and Ethics,” which has been around since 2004.

The ETHI committee did not launch a review of the Act in June 2020 as expected, nor did any other committee. And when a new Parliament was convened on Nov. 22, 2021, after the 2021 election, there was still no review undertaken by any committee.

 However, on May 16 this year an Opposition Conservative member of the ETHI committee tabled a motion that “the committee conduct a study into the Access to Information and Privacy system, which routinely violates its own mandate for open government through delays and mismanagement; that the study consists of no fewer than five meetings; and that the committee report its findings to the House.” Another Opposition member successfully moved that the committee remove the ‘routine violation’ clause, and the motion was carried. There was no reference to the 2019 amendments to the Access to Information Act, which required a review by a Parliamentary committee.

The ETHI review is not expected to begin until the fall.

What’s going on here? I asked that question of two clerks of the ETHI committee, who note correctly that ETHI is not named in the amended Act of 2019. They said that unless the House of Commons instructs them or any other committee to undertake a review, there’s no obligation to do so. And the House has asked no committee to undertake such a review, even though the law committed to one.

This is stuff that drives ordinary people crazy. The law requires a review, but nobody in Parliament bothered to comply. What sort of a democracy is this?

And so, the only one-year review of the Act is being undertaken by a wholly unreliable group, the government bureaucrats who are invested in secrecy and hostile to transparency. Let’s hope that the ad hoc, Conservative-led study of the Access to Information Act at least makes life uncomfortable for those public servants and for the government.

June 2, 2022