FOI by the numbers

Canada’s information commissioner, Caroline Maynard, recently released her annual report on how well federal institutions are abiding by their transparency obligations under the Access to Information Act (ATIA).

The headline is that she received more complaints in 2021-2022 – that is 6,945 – than in any year since her office was created in 1983. Perhaps this isn’t surprising. Canadians are filing record numbers of access-to-information requests, and there are bound to be proportionately more complaints. Making a complaint is still free, and an online portal for doing so makes it easier than ever.

The biggest factor, though, is the COVID-19 pandemic, which gummed up the ATIA system starting in 2020-2021 and continued in the last year. The system had broken down well before COVID-19, but the pandemic gave bureaucrats a fresh excuse to perform badly.

There are other numbers in the report, though, also worth reviewing.

Controversial amendments to the Act in June 2019, the notorious Bill C-58, for the first time gave departments an opportunity to ignore a request if they deemed it vexatious, made in bad faith or an abuse of the right to make a request – but only with the information commissioner’s approval.

At the time, I was concerned this new section would itself be abused. After all, journalists are often tarred as “vexatious” just for asking tough questions. However, Maynard’s report shows that while departments have applied to her office 48 times to be rid of a pesky requestor over the last three years, she gave the green light just three times.

The June 2019 amendments also gave her office the authority to issue orders to departments, whereas previously she could only make recommendations or (rarely) ask a federal judge to intervene. The new report shows she’s making use of that power, 30 times in the last three years, and 25 of those orders issued in 2021-2022. (The slow start was expected: the 2019 amendments apply only to new requests, and it may take months of complaint investigation to decide an order is necessary.) So orders are ramping up, sending important signals to the bureaucracy.

The Bill C-58 amendments also gave Maynard’s office the authority to publish the results of her investigations. As I wrote in an earlier blog, a public database of decisions allows her office to direct departments to a body of precedents instead of going over the same ground repeatedly. The new report says she had published 56 summaries of investigative reports up to March 31, 2022, in both official languages. It’s a good start to ending FOI’s Groundhog Day.

There’s a statistic, though, that’s not in the annual report. Instead, I gathered it myself through an Access to Information Act request to Maynard’s office.

Under Section 63(2) of the Act, if the information commissioner finds evidence of an offence against any federal or provincial law, she may alert the Attorney General of Canada. Her investigations might, for example, find evidence of the criminal offences cited in 67.1 of the Act, referring to the offence of destroying, mutilating or altering a record with the intention of denying a requestor’s right of access. (See my blog about the 1999 passage of this section.)

The commissioner’s office has referred five cases directly to the Attorney General, that is:

March 25, 2010 – to Rob Nicholson, regarding deleted emails at the National Gallery of Canada: “records responsive to the access to information request were destroyed and individuals were counselled to destroy records during the course of the processing of the request”

March 26, 2015 – to Peter MacKay, regarding the destruction of the long-gun registry at the RCMP: “the RCMP destroyed records responsive to the request with the knowledge that these records were subject to the right of access”

May 30, 2017 – to Jody Wilson-Rayboud, regarding deleted emails at Shared Services Canada: “398 pages of deleted email records were responsive to the request.”

Sept. 10, 2018 – to Jody Wilson-Raybould, regarding a June 2012 incident at RCMP: “a possible obstruction of the right of access” (Note: this has not been made public before, hence no link.)

Feb. 27, 2020 – to David Lametti, regarding alleged concealment of records at National Defence and the Canadian Armed Forces: “there is evidence of possible actions taken to conceal a record, and to direct, propose, counsel or cause any person in any manner … in order to conceal a record.”

There were also two related cases that involved the minister’s political staff at Public Works and Government Services Canada. The information commissioner could only recommend that the Justice Minister review the files, because the Act prevents her from making a direct referral to the Attorney General if political staff are involved. (She asked for a change in the law, but the whacky loophole remains to this day):

March 11, 2011 – A special report to Parliament on my own complaint about political interference by a staff member in the minister’s office regarding my access-to-information request for a real-estate report.

April 10, 2014 – A special report to Parliament, self-initiated by the commissioner, on the political interference by a group of ministerial staff impacting eight access-to-info requests between 2008-2010.

To my knowledge, no charges were laid in these cases. And that is perhaps the root of the many failings of the Access to Information Act: no serious consequences for bad behaviour.

June 20, 2022