OTTAWA — “The changes announced today enhance the transparency and accountability of Canadian democratic institutions by ensuring that Canadians can easily view the most often requested documents without having to file an access to information request.”
— Democratic Institutions Minister Karina Gould, June 21, 2019
Federal cabinet ministers were patting themselves on the back last week after Bill C-58 received royal assent. The bill updates Ottawa’s oft-criticized access-to-information regime, which the Liberals had promised during the last election to strengthen.
The bill faced heavy criticism during the two years it took to wend its way through Parliament. One of the beefs was that the Liberals did not fulfil their promise to expand the act to include ministers’ offices.
The government said it needed to balance transparency with parliamentary privilege.
Largely overlooked was a section of the bill ordering the regular release of information about expenses incurred and contracts signed by senior government officials, members of Parliament, senators, ministers and federal judges.
It also requires the disclosure of certain briefing notes for ministers and deputy ministers.
So is it true that the changes to the access-to-information regime introduced by the Liberals ensure Canadians can easily view the most requested documents without having to file an access to information request?
The Canadian Press Baloney Meter is a dispassionate examination of political statements culminating in a ranking of accuracy on a scale of “no baloney” to “full of baloney” (complete methodology below).
Spoiler alert: Gould’s remark earns a rating of “some baloney.”
The provisions on what is known as the “proactive disclosure” of certain government information are in Part 2 of Bill C-58.
That includes setting down in law a practice started in 2004, which saw ministers, their staff and senior departmental officials regularly publish their travel and hospitality expenses over the previous quarter.
Bill C-58 goes expands the requirement to MPs, senators, their staff, parliamentary employees and Federal Court officials, all of whom must also provide lists of contracts signed for taxpayer dollars.
The law also directs departments to publish lists of briefing notes provided to ministers and the heads of departments as well as the transition binders prepared for them when they take over their positions. Briefing packages prepared for ministers for question period and for them and senior officials for committee appearances must also be disclosed. These are favourite targets for journalists’ access-to-information requests, since they often lay out in plain language the bureaucracy’s biggest problems and worries.
Before any of the material is posted on a government website, it is first vetted.
Bill C-58 lays out several scenarios in which information about expenses and contracts can be withheld, while departments are still required to scrub briefing notes for potentially sensitive information — like any normal access-to-information request.
The access-to-information law requires departments to respond to most requests within 30 days but Bill C-58 applies different deadlines for proactively disclosed records — in some cases up to 120 days.
Proactively disclosed records are also excluded from the federal information commissioner’s ambit, meaning Canadians cannot file complaints about them.
What the experts say
Experts on open government and the access-to-information system generally agree that ordering the release of more information is positive.
Many nonetheless had questions and concerns about how the new obligations would play out — and whether Canadians will truly be able to more easily access what Gould described as “the most often requested documents.”
That included why she described the records covered by Part 2 of Bill C-58 as “the most requested.”
“If you look at the departments that get the most requests, (Immigration, Refugees and Citizen Canada) is number one,” said Toby Mentel, executive director of the Centre for Law and Democracy in Halifax.
“And I don’t think this is going to make those sorts of documents that are being requested from Immigration available.”
The Immigration Department received more than 64,000 access-to-information requests in 2017-18, according to government figures. The Canada Border Services Agency came in second with nearly 7,500.
The border agency reported processing more than 15.6 million pages in response to those requests; Immigration handled 3.7 million.
“I think they are important documents that they’re covering,” Mentel said of the proactive-disclosure provisions, “but that’s not quite the same thing as the most-often requested documents.”
Experts also had concerns about the amount of time departments now have to disclose records, which in some cases is far longer than the 30-day deadline for responding to normal access-to-information requests.
“That delay is important to think about,” said Teresa Scassa, a Canada research chair in information law at the University of Ottawa, of the longer timelines.
“If you need the information faster, you’d have to file the access-to-information request because it may not be up in time.”
Even then, the access-to-information law has a provision letting departments deny requests because the desired documents are to be published soon.
There were also questions over how departments’ compliance will be policed.
“The government will still continue to apply these exemptions and exclusions,” said Sean Holman, an expert on open government at Mount Royal University in Calgary. “It’s not as if we’re getting an unredacted view of these records. We’re getting a redacted view of these records.”
Yet while Bill C-58 lets the government withhold potentially sensitive information from proactively released documents as it does with normal requests, it specifically prevents the federal information commissioner from investigating such documents.
The only likely way around, said Duff Conacher, co-founder of transparency activist group Democracy Watch, would be to formally ask for the same document once it is published and then file a complaint to the commissioner on that request.
“Records could easily be kept hidden by exploiting these loopholes and exemptions (in the act),” he said.
Thanks to Bill C-58, parliamentarians and the federal government will begin releasing more information to Canadians — some that is regularly requested through the access-to-information system and some that was never previously covered by the law.
Yet aside from uncertainty about how often such information is requested, experts say the long timelines under which documents will be produced and the lack of oversight of the process raise questions about Gould’s statement.
“It’s not completely full of baloney, but it’s excluding so much information,” Holman said. “It’s saying that this one change is going to enhance transparency and accountability. And it’s saying that (people) can easily view them. And those aren’t actually true statements. They’re very seriously shaded truth.”
“I think there’s going to be more that’s available through proactive disclosure eventually,” said Scassa. “But these are cautious steps and it’s a matter of how it’s going to play out, how much will actually be made available and under what circumstances.”
For those reasons, Gould’s statement is deemed to contain “some baloney.”
The Baloney Meter is a project of The Canadian Press that examines the level of accuracy in statements made by politicians. Each claim is researched and assigned a rating based on the following scale:
No baloney — the statement is completely accurate
A little baloney — the statement is mostly accurate but more information is required
Some baloney — the statement is partly accurate but important details are missing
A lot of baloney — the statement is mostly inaccurate but contains elements of truth
Full of baloney — the statement is completely inaccurate
Lee Berthiaume, The Canadian Press