Canada's Access to Information Act fails to meet global standards, report finds



    OTTAWA, Oct. 1 /CNW/ - A new report co-sponsored by the Canadian
Association of Journalists says Canada's access to information laws lag behind
those of countries such as India, Mexico and Pakistan, meaning the public's
right to know is slowly eroding.
    On International Right to Know Day, the CAJ calls upon the leaders of the
country's political parties to detail how they would improve the Access to
Information Act to ensure greater openness and accountability to citizens.
    "Canada used to be a global model of openness, and now we're backsliding
into the dark ages of government secrecy, obfuscation and denial," said
CAJ President Mary Agnes Welch. "It's national Right to Know Day, but the
public's right to know is seriously at risk."
    The 392-page document, "Fallen Behind: Canada's Access to Information Act
in the World Context," found that, on 12 key points, Canada's act fails to
meet the international standards of freedom-of-information (FOI) law endorsed
by the United Nations Special Rapporteur on Freedom of Opinion and Expression.
    It found that Canadian reporters wait many months or even years for
replies to their ATIA requests, whereas the average national FOI legal
standard for replies is 14 days. Some nations also have strong penalties for
delays, which are lacking in Canada. And Canada's federal information
commissioner lacks the essential power to order the release of information --
unlike his counterparts in five provinces. That key power, which was promised
by Prime Minister Stephen Harper, is just one among a list of promised reforms
to the country's access to information regime that were not fulfilled.
    There are also more than 100 quasi-governmental agencies -- including
bodies dealing with blood services and nuclear waste -- that are not obliged
to follow the Canadian law, unlike similar bodies in most other nations.
    Strong access to information legislation guarantees the public's ability
to scrutinize the activities of government. Since the act came into force in
1983, Canadian journalists have used it to produce hundreds of articles on
risks to health and safety, the environment, law and order, and the proper use
of taxpayers' funds -- articles that would not have been possible without
ATIA requests.
    Last month, through ATIA, the Globe and Mail revealed that in 2006, the
Canadian government strongly opposed tougher U.S. rules to prevent listeria.
In May, the Ottawa Citizen found about 1 in 20 gas pumps in Canada was pumping
less gas than indicated on the readout, according to Measurement Canada
inspection data.
    The new report was prepared by Stanley Tromp, a Vancouver-based freelance
reporter and co-ordinator of the CAJ's freedom of information caucus. It was
sponsored by the CAJ, the B.C. Freedom of Information and Privacy Association,
the Canadian Newspaper Association, the Canadian Community Newspapers
Association, and members of two Vancouver law firms. The full report can be
found at: http://www3.telus.net/index100/foi.

    The CAJ is Canada's largest professional organization for journalists
with more than 1,500 members across to country. The CAJ's primary role is to
provide public-interest advocacy and high quality professional development for
its members.

    
                             ( BACKGROUND - FYI )

    Canada's rusty freedom-of-information law fails to meet global standards:
    report
    

    Below are some findings from the report Fallen Behind: Canada's Access to
Information Act in the World Context. It is available at
www3.telus.net/index100/foi, along with a chart contrasting each part of the
ATI Act with the freedom of information (FOI) laws of 75 nations and the
Canadian provinces. The site also has an index to global FOI rulings, to allow
applicants to find precedents for their FOI appeals.

    
    -   On 12 key points, Canada's ATI Act does not meet the international
        standards of FOI law which were set out in the 1999 document
        The Public's Right to Know: Principles of Freedom of Information
        Legislation, by Toby Mendel of the London based human rights
        organization Article 19. These principles were endorsed by the
        United Nations Special Rapporteur on Freedom of Opinion and
        Expression.

    -   Canada's ATI Act also fails to conform to many central
        FOI recommendations from at least ten other global political
        organizations, such as Commonwealth Secretariat, the Council of
        Europe, the African Union, the World Bank, and United Nations
        Development Agency (UNDP).

    -   The Conservative Party of Canada's 2006 election platform statement
        Stand Up for Canada promised to grant the Information Commissioner
        the power to order the release of information, a pledge that was not
        fulfilled.

    -   Yet this order-making power is held by the information commissioners
        of five Canadian provinces and 16 other jurisdictions including
        Mexico, India, New Zealand, and the United Kingdom (our parliamentary
        model).

    -   Amongst the world's FOI laws, the average request response time is
        two weeks. At least 60 other FOI nations in the world prescribe
        shorter timelines than in Canada, and some have strong penalties for
        delays. Yet under the Canadian ATI Act, public bodies must respond to
        requests within 30 days, and may extend this for another 30.

    -   Delays in responding to ATI Act requests have truly reached a true
        crisis level. Some departments are so backlogged that they
        automatically add extensions of more than 100 days to most, if not
        all, requests. Others agencies coolly grant themselves a 240 day
        extension, for in the ATI Act the limit may be stretched for an
        unspecified "reasonable period of time." In a recent report, the
        Information Commissioner validated a 2005 complaint by the
        Canadian Newspaper Association that agencies red-flag and further
        delay ATI Act requests by the media.

    -   The Conservatives made an (unfulfilled) pledge to "expand the
        coverage of the Act to all Crown corporations, Officers of
        Parliament, foundations and organizations that spend taxpayers' money
        or perform public functions." This promise was only partially
        fulfilled by the new inclusion of several entities in the
        Accountability Act.

    -   But more than 100 quasi-governmental entities are still not covered
        by the ATI Act. The exclusion of such entities such as the
        Canadian Blood Services and the nuclear Waste Management
        Organization blocks transparency could impact public heath and
        safety.

    -   On this topic Canada has fallen farthest behind the world
        FOI community. The FOI laws of 29 nations cover legal entities
        performing "public functions" and/or "vested with public powers," and
        the statutes of the United Kingdom, India, and New Zealand also
        provide good models.

    -   The Conservatives made an (unfulfilled) pledge to "provide a general
        public interest override for all exemptions." Today the FOI laws of
        38 other nations - and all but one of the Canadian provinces and
        territories - contain much broader public interest overrides than are
        found in the Canadian ATI Act.

    -   The Conservatives made an (unfulfilled) pledge to subject all ATI Act
        exemptions to a "harms test," where the government must prove that an
        injury would result from releasing exempted records, such as those
        regarding law enforcement or trade secrets. Seven ATI Act exemptions
        still lack harms tests, a situation which falls seriously short of
        accepted world standards.

    -   Only in Canada and South Africa are the records of cabinet
        discussions completely excluded from the scope of the ATI Act law,
        and Canada's Information Commissioner does not even have the legal
        right to review such records.

    -   Yet ten Commonwealth nations, including the United Kingdom, have an
        exemption instead of an exclusion for these records, meaning they can
        be reviewed by an appellate body and released. More than 50 other
        national FOI statutes have no specific exemption for cabinet records
        at all. As well, such records can be withheld for 20 years in the
        ATI Act, but for only 10 years in Nova Scotia's FOI law.

    -   The Conservatives made an (unfulfilled) pledge to "oblige public
        officials to create the records necessary to document their actions
        and decisions." It is well known that the pernicious trend towards
        "oral government" has spread in Canada: officials often fail to
        commit their thoughts to paper and convey them verbally instead,
        mainly in an effort to block the information coming out under FOI.
        Several other national FOI laws prescribe record creation, and the
        duty to file records in a way that facilitates access.

    -   Today there are more than 50 other provisions in other laws that
        override the ATI Act. The Conservatives made an (unfulfilled) pledge
        to fix this problem, and so make the ATI Act supreme on disclosure
        questions. Several Commonwealth nations - including India, Pakistan
        and South Africa - establish that their FOI law will override secrecy
        provisions in other laws.
    




For further information:

For further information: Mary Agnes Welch, CAJ president, (204)
943-6575, Cell (204) 470-8862; John Dickins, CAJ executive director, (613)
526-8061; Stanley Tromp, Vancouver, (604) 733-7595, stanleytromp@gmail.com


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