Thank you for inviting me as a witness today.
This inquiry, by my count, is at least the 16th broad review of the Access to Information Act since the legislation was passed in 1982. In this country, we love to study transparency laws thoroughly to ensure that we don’t actually get around to fixing them.
I’m an independent journalist with long experience of using the act. I speak from a journalist’s perspective, though my frustrations with the act mirror those of other users, including indigenous peoples, civic activists and even backbench MPs.
Journalists have been abandoning access to information in droves lately. The desertion began before COVID hit. The pandemic chased away the stragglers.
Less than 5% of all requests filed in 2021 came from the media. That’s half the level of five years earlier, and a third of a decade ago. Why are reporters giving up? It's because, as study after study has shown, turnaround times are terrible and getting worse.
MPs who passed the law in 1982 expected that most requests could be answered in a month, with some exceptions. Since then, the reality for journalists is the reverse. Requests answered in 30 days are the rare exception, with most taking far longer.
Bureaucrats also now realize that they face a much bigger blowback from releasing information than from withholding it, and the law provides them with a rich menu of excuses to keep things buried.
When stale-dated access documents finally do arrive on a reporter’s desk, they’ve been picked clean of meaningful content. Imagine telling your editor that you won’t know whether you’ll have an access-based story for at least six more months—maybe a year or longer—while the rest of the newsroom reporters are scrambling to get a scoop out before noon.
The news business has been caught in a death spiral for 15 years. Journalists are being thrown overboard to lighten sinking ships. Sizable communities no longer have local reporters watching for fraud in town councils. Meanwhile, governments are ever more bloated with spin doctors, social media gurus and image consultants. It’s not a fair fight, and it’s not just journalists down on the mat; democracy is getting a bloody nose as well.
Let’s consider some advice for reform already given to this committee. You’ve been told that the law needs a reverse onus. Information should be released unless the government can show that it shouldn’t, but the law already has a reverse onus in paragraph 2(2)(a). New words saying the same thing in a different way won’t save the day.
You’ve been told that the Information Commissioner should become a transparency czar with broader responsibilities, but the commissioner can’t even discharge her current mandate. She takes too long to resolve complaints—as much as 10 years. Let’s not burden her with more responsibilities until she can deliver on the existing ones.
You’ve also been told that proactive release of more documents is a solution to a dysfunctional access system. If government pushes out more documents, citizens won’t need to pull them using access requests. This is a false hope. Governments may willingly release downstream documents that are innocuous and safe, but upstream documents tied to decision-making will never be made proactively available, unless of course they’ve been scrubbed clean. That’s why we have freedom of information laws, so that citizens aren’t stuck with records that have been sanitized in the government’s interest.
My own prescription for reform is to stay clear of long checklists. I suggest focusing on a few key changes.
One, pull down the brick wall protecting cabinet records. Limit the protection period to 10 years. Stop withholding records that have nothing to do with cabinet deliberations and that are factual or background. Give the Information Commissioner access to cabinet records so that she can review any decision to withhold them.
Two, set tougher limits on a department’s ability to delay. If an institution blows past a deadline, for example, take away their authority to claim exemptions.
Three, define “advice” in the law much more narrowly so that departments can’t use it as a catch-all for withholding information.
Four, put a time limit on the Information Commissioner’s investigations—say, six months. If she hasn’t finished by then, let complainants go to court.
Just getting these few things done would start us down the road to reform. It would also give a dwindling pool of journalists a better shot at holding governments to account.
Thank you for your invitation. I'll be happy to answer any questions.