Status: At First Reading

Background

The Access to Information Act was signed in 1983, and since then it has been the legislative basis that governs what information can be made available to the Canadian public, and the mechanism to make information public. Under the act, any Canadian citizen, permanent resident, and corporation can request access to any record controlled by a government institution. The basic function of the act is to make Government more open, transparent, and accountable.

The Act has not been revised since 1983, which is problematic because information management regimes have advanced dramatically since 1983, and especially in the digital age. Furthermore, the current Government of Canada has committed to openness and transparency in government as a central tenant in its 2015 electoral campaign (Real Change: Open and Transparent Government). This Bill is part of the government’s action based on that commitment.

The purpose of the Act, as included in section 2(1) is “to enhance the accountability and transparency of federal institutions in order to promote an open and democratic society and to enable public debate on the conduct of those institutions.” It does this by 1) extending existing laws to more organizations and 2) proactively releasing information.

New Provisions under C-58

One of the most significant new provisions within the act is for preemptive release of data, so that ATIP requests do not need to be completed. This includes detailed information on expenses such as travel, contracts, and hospitality for Senators, MPs, parliamentary entities such as directorates, committees, and administrative units.  Ministerial mandate letters would be required to be made public, along with briefing materials for new Ministers. Ministerial expenses would also be made public – including the Prime Minister’s expenses.

New rules are being developed that will enable government to refuse requests for information. The grounds for refusal under the amendments is that a request does not include necessary information, the person already has or may otherwise access the information, the request is so large that it would “unreasonably interfere with the operations of the government institution,” and that the request “is vexatious, is made in bad faith, or is otherwise an abuse of the right to make a request for access to records.” (Section 6.1(1)) If a request for information is refused, the requestor must be given written reasons, and they may appeal the decision.

Finally, regular review is built into the new legislation. Under section 93(1), the Act would be reviewed one year after it receives Royal Assent, and every five years thereafter.

Impact on First Nations

Any act that relates to access to information raises questions about how the OCAP principles apply under the new legislation. The link between OCAP and the Access to Information Act is made explicit in a 2014 article by the First Nations:

One of the most important principles within OCAP™ is that First Nations control the use and disclosure of First Nations data. In other words, information (records, reports, data) that identifies any particular First Nation or group of First Nations should not be used or disclosed without consent of the affected First Nation – regardless of where that information or data is held.

Unfortunately, this principle is defeated by Canada’s Access to Information Act: federal legislation passed in 1985 provides public access to government information via an Access to Information and Privacy (ATIP) request (Government of Canada 1985a).[1]

The authors go on to explain that under the existing Act, ATIP legislation allows the government to withhold information for several reasons, one is that it is obtained in confidence from another government, but that most First Nations are not included in the legislative definition of “another government.” This means that First Nations data can be legally released to third party individuals or corporations under existing Access to Information rules without First Nation consultation. This happened in 2010 when Non-Insured Health Benefits data was released to a consulting company and ultimately used for pharmaceutical marketing and sales. Further, all federal funding flowing to First Nations was made available in April 2017.

Therefore, the importance of this Act is  not what is included, but what is excluded. The new bill makes strides towards open and transparent government, but did not protect the principles of OCAP. Ironically, the above quoted article calls for amendment to the Access to Information Act so that First Nations in Canada would be recognized as governments and be protected under those provisions.

As stated by the First Nations Information Governance Centre, the 1983 Access to Information Act is a stumbling block preventing First Nation information governance. Should this new legislation pass, existing issues with the Act would not be corrected.

[1] First Nations Information Governance Centre, *. (2014). Barriers and Levers for the Implementation of OCAP™. The International Indigenous Policy Journal, 5(2) . Retrieved from: http://ir.lib.uwo.ca/iipj/vol5/iss2/3

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