Thank you, Mr. Chair.
Thank you to the committee members for inviting me to speak with you today.
My name is Andrea Conte. I am an independent researcher. I work in the media arts. I've circulated two articles to members that relate to my work with Canadian state records, one of which took five years to write because of access delays.
With the many days of hearings before this committee on Canada's freedom of information system, I think it's important that we clearly understand the origin story of the Access to Information Act of 1983.
Throughout the 1970s, Canada was trying to play catch-up with the United States, which established its own freedom of information legislation in 1966. It's important to place this time period in relevant context. It was during this era of the 1960s and 1970s that the RCMP security service engaged in routine abuses, which culminated in the McDonald commission of inquiry into RCMP abuses that varied from forged letters to the infiltration of racialized and indigenous groups, among others. All the while, one in 20 Canadians had a file with the security intelligence service. It was amidst this crisis that the Access to Information Act was ushered in, drafted and sold to the public as a modern right to hold the government accountable.
According to Don Brittain, an NFB and CBC documentarian who covered the crisis at the time, access to information legislation was “so artfully worded that...it would become little more than an instrument of concealment”. Forty years later, we know this prediction to be true, and all too well. During the press conference that introduced the Access to Information Act in June 1983, ministers celebrated the favourable similarities of the Canadian act with its American FOIA counterpart. But this has never been the case. On contemporary records, the U.S. has an expedited processing clause for records that relate to urgent ongoing matters of federal government activity. Canada, however, has no such clause for urgent disclosure of access requests that seek answers to ongoing and urgent matters of public concern—for example, the public health benefit of the ArriveCAN app.
On matters of war or international affairs, the U.S. allows journalists or members of the public to seek direct legal remedies when their government denies, for example, records of internal reviews of its war efforts or its complicity in war crimes, such as the torture of Afghan detainees. The U.S. permits direct access to the courts without delay, producing journalism such as The Afghanistan Papers, which the Washington Post published after a three-year FOIA lawsuit.
In Canada, the Access to Information Act obstructs access to the courts through a drawn-out preliminary appeals process with the Office of the Information Commissioner, restricting the capacity of journalists to do their job. I myself continue to appeal the delay and censorship exemptions over records of internal reviews of Canada's war in Afghanistan with requests on these files that began 10 years ago.
On the declassification of historic records, the committee has heard how the 1983 act nullified the previous declassification system. That created a disaster for anyone with any vested interest in doing historical research, especially on issues that involved prisons, police, military and other institutional forms of state violence within Canada's borders and abroad. When one visits library archives, when you're revisiting redacted RCMP surveillance files, for example, on the 1930s Communist Party of Canada or the 1969 Sir George Williams University uprising, not only are release packages on these files still heavily redacted, but previously published newspaper clippings from the Globe and Mail and other mainstream media organizations have also been redacted in full by CSIS.
If any member of the public wants to challenge any or all of these redactions, they can't, because the act treats a request for information like a consumer good. The opening of one record is not an opening of the record for all. Only the requester can appeal it. That means you have to file the ATIP request all over again, as if the previous request never occurred.
In the case of contemporary records, the open Canada portal includes only a fraction of access to information summaries that have been processed by federal agencies over the two most recent years—and that's if agencies upload any data at all. Every month, the portal erases access to information summaries that exceed the most recent two-year window.
For all these reasons, after 40 years, I believe this access to information cycle of “censor, erase and repeat” has turned into an instrument that directly obstructs and interferes with both government accountability and paragraph 2(b) of the Charter of Rights and Freedoms.
I know this panel is fielding recommendations that number into the hundreds. I do not believe the current system can be reformed, as it is a discretionary system of good faith, with far too many root problems.
I do recommend the committee assemble a panel of constitutional experts who could provide input into the report on how the act interferes with freedom of expression, “freedom of the press and other media of communication”.
Thank you.