Mr. Chair, thank you for this introduction. Thank you also, members of this committee, for giving me the honour to appear before you this morning.
Let me begin by saying that I have been interested in the administration of the Access to Information Act since 1992, as a requester for my clients, as someone who has written about the act, and as a professor who teaches access to information law.
Over the past two decades I have watched the access to information regime slip more and more into irrelevance. I hold the strong belief that this state of affairs is not because the access law is so much defective or outdated in recording radical changes. In my opinion, the slip into irrelevance is due instead to two interconnecting factors.
First is the interplay between a systemic lack of motivation on the part of federal institutions to observe both the spirit and the letter of the access law, and the absence of oversight on the part of anyone holding to account a recalcitrant or delinquent department. Consequently, there is no penalty or reprimand for inuring Canadians from having their quasi-constitutional right of access violated, with the result that flaunting the access law is now an accepted practice in many parts of the federal bureaucracy. Year in, year out, thousands of users of the access system see their requests for information treated with more or less total disregard for the rights to have their access requests responded to fully and within the statutory delays.
Second, only a small number of disenfranchised users of the access system actually file a complaint, as they are entitled to do under the access law. However, more often than not, those who do file a complaint must wait, if not a year then two or more, for obtaining any results. Obviously, they soon learn that the longer they wait, the more pointless their complaints become. Also, they will likely be less inclined in the future to rely on the right to complain to obtain disclosure, and it becomes a process of a vicious circle, disempowering the access requesters.
As an aside, during the last fiscal year there were 78,000 access requests submitted to various federal institutions. Of those, 1,600 complaints were made to the Information Commissioner. This means that a meagre 2% of the original requests gave rise to a complaint to the Information Commissioner.
As noted in my brief, I have concerns with the ongoing debate about reforming the access legislation. First, I disagree with giving the commissioner order power to deal with some of the complaints. Second, I take issue with the unproven assumption that giving order power to the commissioner might ameliorate the access regime.
Let me elaborate.
First of all, I truly believe that giving the commissioner order-making powers would repudiate the doctrine and fundamental principles of the access regime. This would dramatically alter the role of the commissioner, making her a judicial officer who would not have the slightest influence on the outcome for the vast majority of access requesters.
Secondly, I hold the strong belief that the fathers of the access regime got it right in the 1977 white paper by adopting the parliamentary option. Under this option, the commissioner has a right of access to Parliament and he's held directly accountable to this committee for its performance.
Under such a scenario, Parliament remains a dominant player in the management and control of the access regime. However, as stated earlier, giving the commissioner order power will necessarily change that relationship. The commissioner will then become a judicial officer, and as such will be required to act judicially towards Parliament, federal institutions, and the access users. This will also require the commissioner to further augment their already large staff complement.
Hence, I am anything but certain that the grant of order power to the commissioner will impact positively on the current malaise affecting the access regime. I'm suggesting instead that the basic function of the commissioner not be substantially changed. What I am considering and recommending is the conduct of a wall-to-wall, systematic review of the construction, the configuration, and the staffing at that office by the Auditor General to ensure the existence of the most economical and effective organizational structure possible. In my opinion, that is not presently the case.
In the same vein, I am also recommending a common administrative service, something similar to that we now have in the courts administration service, to be re-established between the Office of the Information Commissioner and the Office of the Privacy Commissioner. I also recommend that the management, administration, and legal positions found to be redundant by the Auditor General be reassigned to augment the current complement of investigators, if for no other reason than to reduce the very large backlog of complaints. At the moment, it's two years.
In my brief, I set out 12 reform proposals. For instance, I proposed that the access to information coordinators, who are spread out in some 200 federal institutions, now be appointed by Governor in Council. These coordinators are, after all, on the front lines, as they are the first, and often only, actors within the access regime. They also have the heavy burden of responding to access requesters, while bearing in mind the access directives and decisions made by officials higher up the chain in each department.
If they were appointed by Governor in Council, these coordinators in the various departments would also have the requisite authority and independence to uphold requesters' access rights.
Before closing, one of the recommendations contained in my brief is that the House of Commons and the Senate should also be brought under the ambit of the access legislation. As you probably know, this is currently the case in the U.K., which provides the residents of the British Isles with a meaningful and welcome right of access to some of the records under the control of parliamentarians. Canadians should expect no less.
In conclusion, Canada deserves an open, honest, and accountable government. This can be achieved at least in part by having a working access to information regime. Yet at present, the access to information system is in a state of crisis. The current focus of giving the commissioner the power to order the release of records should not be seen as a panacea capable of redressing the access law, which has been rendered more or less nugatory. The Province of Quebec has learned that particular lesson. Quebec appears to be balking at continuing with this use of order power mechanism as the modus operandi for their information commissioner.
However, even if such order power were to be granted, one should keep in mind that this would only address a very small proportion of the tip of the iceberg. Respectfully, therefore, I urge this committee to focus instead on the 90% of the other requesters, or the rest of the iceberg, which is currently being managed exclusively by the ATIP coordinator within each one of the institutions. I am of the view that the commissioner plays an important role in the access to information regime by receiving, investigating, and reporting a complaint by users of access and keeping Parliament abreast. The Access to Information Act provides the commissioner with quite an arsenal of extraordinary powers to investigate complaints, and these need to be used to the fullest. They are currently not. The commissioner also enjoys a potent right of access to Parliament to alert the Canadian democracy when government and the civil institutions fail to live up to their obligations. This, gentlemen, should continue.
That concludes my presentation.