A Right to Information

The annual Special Report to Parliament by the Interim Information Commissioner of Canada, Suzanne Legault, was filed in April 2010 and is now available online [PDF]. As the title of the report says, it is a “2008-2009 Report Card” on the “Systemic Issues Affecting Access to Information in Canada.”

The report assesses the delays encountered by members of the public seeking information under Canada’s access to information system from various federal departments. The Interim Commissioner awarded grades ranging from “A” for the Department of Justice and for Citizenship and Immigration Canada to “off the chart” (as in terrible) for Foreign Affairs and International Trade Canada and “F” for Environment Canada and four other federal departments. The “class average” looks to be “D.”

She sums things up this way:

[D]elays continue to erode requesters’ right to timely access to information.

This right is at risk of being totally obliterated because delays threaten to render the entire access regime irrelevant in our current information economy. Ever-evolving information and communications technologies have increased expectations for a quick dissemination of information enabling content creation and innovation. The government should be leading this new development or, at the very least, keeping up with the pace. . . .

The status quo whereby citizens want information that the government wants to control no longer works. The technical arcana of bureaucracy are neither a reasonable explanation nor an excuse for increasingly lengthy delays. As the custodians of information that belongs to Canadians, Parliament, the Information Commissioner and government must work with all stakeholders to achieve dynamic solutions that embrace democracy through the free flow of information.

Meanwhile, the Supreme Court of Canada is seen by some as creeping towards recognizing the right to information as a Charter right, something that would make a great deal of sense in this, the mature phase of the so-called Information Age.

Paul Schabas and Ryder Gilliland have written a brief case note on Ontario (Public Safety and Security) v. Criminal Lawyers’ Association 2010 SCC 23, a case in which the Criminal Lawyers Association requested information from the OPP under Ontario’s Freedom of Information and Protection of Privacy Act concerning a review of an investigation by the OPP. They conclude:

The good news is that the court has recognized a limited constitutional right of access to documents and information from government. And it’s also encouraging that the court has made clear that the public interest must be considered by government when exercising discretion whether to release information. So it is an important, albeit, baby step towards putting more teeth into access to information laws. As well, the referral back to the Commission suggests that the Court felt that more should be released in this case.

On the other hand, the court has given little guidance on when the Charter interest will be engaged, and it is quite troubling that s. 2(b) [of the Charter] will only apply to “meaningful discussion of matters of public interest” whatever that is.

It may have to happen, as the authors suggest, that any constitutional right to information gets “unhooked” from dependence on the Charter right to expression. Curiously, perhaps, the traditional flow is being reversed: the coin of democracy has been citizens’ expression, freely raining down on the political system; now it may be that the most valuable element in democracy is the free flow of information from the state. The two flows coexist, of course — I’m just musing about a matter of emphasis and, maybe, importance.

On a final note, the British blog from Inforrm (International Forum for Responsible Media), where the Schabas comment appeared, is worth a visit. They maintain a table of relevant decided cases and a table of upcoming cases as well.

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