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Study ranks Canada’s freedom-of-information laws dead last

In Governance
Jan 9th, 2011

The Canadian Press Jan 9 2011
OTTAWA—A new study ranks Canada dead last in an international comparison of freedom-of-information laws — a hard fall after many years being judged a global model in openness.

The study by a pair of British academics looked at the effectiveness of freedom-of-information laws in five parliamentary democracies: Australia, New Zealand, Ireland, the United Kingdom and Canada.
New Zealand placed first and Canada last.
“Above all, an effective FOI regime requires strong government commitment and political will. Officials cannot do it on their own,” says the paper, published in the journal Government Information Quarterly.
“Canada comes last as it has continually suffered from a combination of low use, low political support and a weak Information Commissioner since its inception.”
The study, by Robert Hazell and Ben Worthy of University College in London, ranked countries based on official statistics on appeals, court decisions, delays and other factors affecting the release of government information to public requesters.
The authors criticized Canada FOI law as an antiquated system that generally prevents citizens from filing requests electronically and compels them to submit paper cheques to cover fees.
Under the Access to Information Act, any resident of Canada can request government-controlled information, such as a bureaucrat’s expense claims or a minister’s briefing notes, for an initial $5 fee. The application is subject to a range of exemptions.
The journal’s findings echo another global study, completed in 2008 by researcher Stanley Tromp for the Canadian Newspaper Association and others, that found the operation and enforcement of Canada’s Access to Information Act rates poorly when compared with many other countries, including the United States.
“Canada used to be in the vanguard on this issue,” said Alasdair Roberts, a professor at Boston’s Suffolk University Law School and an expert in freedom-of-information.
“But now Canada at the very best is in the middle of the pack. It’s got an outmoded law.”
Other countries “don’t look to Canada for an example of how to do business anymore,” Roberts said in an interview.
Canada was among the first dozen countries in the world to pass a freedom-of-information law, which came into effect in 1983 long before the era of the web.
As freedom-of-information came to be regarded as a building block of modern governance, countries around the globe would often seek Canada’s advice on how to implement such legislation.
But today, with more than 70 countries on the FOI bandwagon, Canada has become a laggard — and, paradoxically, an occasional source of advice on how not to implement freedom of information, says Canada’s information commissioner Suzanne Legault.
“I’m not surprised that they ranked Canada last,” she said of the latest study. “We were seen as the leaders. … We have fallen behind.”
Legault, whose office resolves complaints from requesters, said while the study has methodological shortcomings, just-published government statistics covering the 2009-2010 fiscal year nevertheless support the finding that the regime is broken.
“We can use our own data, and come to the conclusion that our system is in decline,” she said.
Only about 16 per cent of the 35,000 requests filed last year resulted in the full disclosure of information, compared with 40 per cent a decade ago, she noted.
And delays in the release of records continue to grow, with just 56 per cent of requests completed in the legislated 30-day period last year, compared with almost 70 per cent at the start of the decade.
Legault’s office also suffers from a chronic lack of resources, creating backlogs, while the law does not give her the power to order the release of documents.
The Harper Conservatives first came to power in 2006 on an explicit promise to reform the Access to Information Act dramatically but have largely failed to deliver after five years in power.
Parliament did broaden the number of federal institutions covered by the Act, but growing delays and excessive censorship have plagued the system, prompting repeated public scoldings from the last three information commissioners.
At least three government departments are currently under investigation for alleged political interference in the release of documents, which has led to the resignation of a ministerial aid.
The office of Treasury Board President Stockwell Day, who is responsible for administering the Act, did not respond to a request for comment.
Canada’s lost leadership in the world of freedom-of information parallels its reduced standing at global environmental conferences and its recent failure to win a seat on the UN Security Council.
Roberts said the breakdown of Canada’s FOI system stems partly from the relatively low numbers of requests from citizens — and the absence of lobby groups pressing for change.
“Parties on both sides have realized that you can renege on promises on reforming the law and there’s no significant adverse political consequences,” he said.
“You can ride it out. And the reason you can ride it out is that there is no well-organized, well-funded lobby that is going to push you aggressively on this.”
Roberts, the Canadian author of a landmark volume on freedom of information, said the lack of effective criticism has emboldened senior civil servants to actively resist the law.
“In a perverse way, Canada is becoming in the vanguard again — but it’s in the vanguard because you have senior officials who are willing to say, ‘We think this law is a bad idea.’ “
Added Legault: “we have lost sight of the purpose of the Act,” as overworked bureaucrats largely focus on the technical application of legal loopholes to withhold information.
The geriatric legislation also reflects the nondigital world of the early 1980s, and has become more and more difficult for ordinary Canadians to use.
“My children are never going to use it,” Legault said, noting for example that a new generation doesn’t write cheques anymore but transfers funds electronically.
One prolific user of Canada’s FOI law applauded the British paper. “This study should be a call to action — not for parliamentarians because they are obviously in a huge conflict of interest — but the general public,” said Ottawa lawyer Michel Drapeau.


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