An FOI milestone (sad face here)

A new milestone in access-to-information was reached last week. There’s little reason for users to celebrate.

For the first time, a federal department is headed to court to challenge an order issued by the Information Commissioner of Canada.

Caroline Maynard was given order-making power in June 2019, when Bill C-58 received Royal Assent. Requestors like myself had argued for years that the commissioner needed this stick to keep recalcitrant departments in line. Many simply thumbed their noses whenever she recommended release of documents requested under the Access to Information Act.

The fine print in Bill C-58, alas, showed she was given only a watered-down version of order-making authority. As a previous blog detailed, her orders are weaker than those of a Federal Court judge, with fewer legal consequences. And disputatious departments can challenge her orders in Federal Court. They can ask the judge to review the case from the start, and have the ability to introduce fresh evidence not originally provided to the commissioner.

Public Services and Procurement Canada (PSPC, formerly Public Works) did just that on Aug. 4. They filed a notice of application (T-1623-22) to overturn the commissioner’s order to release records to a requester by Aug. 15, rather than by Dec. 31, as the department insisted.

The access request in question is a monster, covering 14,000 pages. (See my blog about the unfortunate increase recently in monster requests.) PSPC received the request on July 12, 2019, which asked for about 18 months’ of records from the Copyright Media Clearance Program.

PSPC gave itself a 420-day extension, then failed to meet its deadline. The information commissioner carefully considered the department’s struggles with COVID-19 and the need to consult other institutions, and allowed them two more extensions – both of which they blew past.

No doubt exasperated, Maynard ordered a full release this month, rejecting a “staged response” that the department wanted, that is, dribbling out bits and pieces over months. Now the case is headed to court.

“PSPC is not capable of complying with the timelines set out in the IC’s [Information Commissioner’s] order, due to the volume of records responsive to the request, the need for third-party consultations, the complications related to COVID-19 pandemic restrictions and the ongoing lack of resources,” the department claims in its court application.

PSPC has already won. Simply going to Federal Court bought the department extra months in which to process the request, so that the case will almost certainly be moot by the time it is decided.

Doubtless many other departments are watching the legal skirmish closely to see how they can wriggle out of commissioner orders. It’s worth noting that both sides will incur legal costs paid for out of the same pocket, that is, yours and mine as taxpayers.

Maynard has lately been ramping up her order-making. As of March 31 this year she had signed 30 orders, and 25 of those were issued in 2021-2022. Her office has also given notice in other complaints of its intention to slap orders on troublesome departments. Some of these institutions toed the line before an order was actually issued. Users are well-served by Maynard’s harder line.

But we’ve now crossed into new territory, as the empire strikes back. Bureaucrats are testing a strategy to undermine timeliness and transparency by resorting to the courts. This Federal Court case is the first, and certainly won’t be the last.

August 10, 2022