Access to Information law changes won't open up PMO, cabinet offices

Prime Minister Justin Trudeau’s government is reneging on its election promise to make the Prime Minister’s Office and cabinet ministers' offices subject to Canada’s Access to Information Act. However, it is introducing the concept of proactive disclosure to make some documents public automatically.

Proposals would shed light on travel, hospitality spending by judges

Treasury Board President Scott Brison makes an announcement on Parliament Hill in Ottawa on Monday, June 19, 2017, regarding Access to Information. (Sean Kilpatrick/Canadian Press )

Prime Minister Justin Trudeau's government is reneging on its election promise to make the Prime Minister's Office and cabinet ministers' offices subject to Canada's Access to Information Act.

Instead, in proposed changes to the act introduced Monday, the government is promising to proactively release more information than it has in the past. For example, documents such as travel and hospitality expenses, briefing binders and mandate letters will be automatically made public.

Speaking to reporters Monday, Treasury Board President Scott Brison defended the government's decision, focusing on the promise of expanded proactive disclosure rather than the broken promise of allowing Canadians to file requests to access documents in the offices of cabinet ministers or the prime minister.

"Expanding and putting into law proactive release of government information is an important step in meeting and reflecting the principle of open by default, which we believe is the future of government information sharing."

At times, Brison seemed to conflate proactive disclosure, in which the government voluntarily makes public certain types of information, with the Access to Information law, which allows citizens to request documents that haven't been made public to better understand government decisions and actions.

Trudeau government backs down on promise to make PMO, ministers' offices subject to Access to Information Act

6 years ago
Duration 9:18
Featured VideoInstead, the government is promising to ‘proactively disclose’ more information than it has in the past

"We are applying the Access to Information act through expanded powers of proactive disclosure to ministers' offices, to the Prime Minister's Office, and we're expanding proactive disclosure across government, including to administrative offices supporting Parliament and to administrative offices supporting the courts and to court authorities."

In addition to enshrining proactive disclosure in the law, the government is investing in improving the request-based Access to Information system, Brison said.

Many of the documents that would be proactively disclosed under the proposed legislation are already being voluntarily disclosed by the Trudeau government. Under previous governments, citizens would have had to file access requests to obtain copies of documents like briefing binders or mandate letters.

According to the amendments introduced Monday, proactive disclosure would also extend to the courts, raising the prospect of the travel and hospitality expenses of those sitting on the bench being made public for the first time. However, the government is also proposing to give court administrators the power to keep expenses secret if they believe that making the information public could jeopardize judicial independence.

More powers for watchdog

The government is also promising to give more teeth to Canada's access to information watchdog.

Under the proposed changes, the information commissioner, who oversees the application of the access law, would get the power to issue binding orders for government departments to disclose information. If a government department wants to challenge the commissioner's order, it would have to take its case to Federal Court.

Treasury Board President Scott Brison is accompanied by the Minister of Democratic Institutions Karina Gould and the Minister of Justice Jody Wilson-Raybould as they make an announcement regarding Access to Information. (Sean Kilpatrick/Canadian Press)

The Liberals are also planning to keep their promise to hold reviews of the access law every five years, with the first to take place within a year of royal assent of the proposed changes.

However, the government is planning to introduce a change it never talked about during the election campaign. The new clause would allow the information commissioner to refuse to investigate complaints judged to be frivolous or vexatious.

Currently, anyone who feels their Access to Information request hasn't been handled properly can appeal to the information commissioner's office.

Election promise

The legislation tabled Monday outlines the government's plans to update the aging act, which has barely been touched since it was first introduced in 1983. The act allows Canadians, for a $5 fee, to request copies of government documents.

However, with Parliament expected to rise for the summer in coming days, the amendments unveiled by Brison, Democratic Institutions Minister Karina Gould and Justice Minister Jody Wilson-Raybould are unlikely to be debated before the fall.

Updating the Access to Information Act was a key part of the Liberal Party's platform during the 2015 election, with Trudeau campaigning on a promise to make information open by default.

Not long after the election, the government moved to keep one of its election promises by ending the sometimes onerous search fees, which at times discouraged Canadians from using the act.

Other promises were more ambitious.

Trudeau promised that for the first time, the Access to Information law would apply to the Prime Minister's Office, cabinet ministers' offices as well as "administrative institutions that support Parliament and the courts."

Trudeau also pledged to increase the powers of Canada's information commissioner, giving them "the power to issue binding orders for disclosure." In the past, the commissioner has sometimes had to turn to the Federal Court to enforce some of the commissioner's rulings.

The Liberals also promised to carry out full legislative reviews of the Access to Information Act every five years.

'Big promise broken,' NDP says

NDP MP Nathan Cullen said the promise about information access that attracted the most attention during the election campaign was the prospect that a Trudeau government would extend the Access to Information Act to the offices of cabinet ministers and the prime minister.

"They left the really big promise broken," he said in an interview with CBC News.

"ATIP going right to the minister and the prime minister was really a game changer, so the game's not changing."

Exempting ministerial offices from the access law means that Canadians won't be able to truly know why a government made a particular decision, he said.

The Liberal government moved to reduce onerous search fees on Access to Information requests last year, but promised more far-reaching changes to the act. (Sean Kilpatrick/Canadian Press)

"Getting the thinking behind government decisions is the point," he said. "Why did you choose this fighter jet over that jet? Why did you make this decision on marijuana over that decision? Why did you keep the prime minister and his cabinet exempt from access to information?"

Katie Gibbs, executive director of the group Evidence for Democracy, praised improvements in the law such as the mandatory five-year review. But she said it falls short of what the Liberals had promised during the election.

"By excluding the ability to request information from ministers' offices and the PMO, this government falls short of meeting their campaign promise to make government 'open by default,'" she said in a statement.

"What's more, the ability to throw out Access to Information requests based on an unclear procedure puts government transparency and openness at risk."

Duff Conacher, co-founder of Democracy Watch, had a mixed view of the proposed changes.

"The bill proposes the good changes of expanding the law to require more proactive disclosure of some information, and giving the information commissioner the power to order the release of records, but it does nothing to close the huge secrecy loopholes in the law like the Liberals promised they would, and so more changes are needed to have a transparent government that is open by default."

Conacher was also concerned by the new provision that would allow the government and the information commissioner to reject some access requests.

"The bill take a step backwards in allowing government officials to deny requests for information if they think the request is frivolous or made in bad faith. Public officials should not be given this power, as they will likely use it as a new loophole to deny the public information it has a right to know."

Elizabeth Thompson can be reached at elizabeth.thompson@cbc.ca


Elizabeth Thompson

Senior reporter

Award-winning reporter Elizabeth Thompson covers Parliament Hill. A veteran of the Montreal Gazette, Sun Media and iPolitics, she currently works with the CBC's Ottawa bureau, specializing in investigative reporting and data journalism. She can be reached at: elizabeth.thompson@cbc.ca.