Speaking notes for the Legal Panel on Democracy, the Right to Information and the Role of Legislation

I think the Access to Information regime is broken. So do many of my colleagues in journalism.

Now, I made a midsummer resolution that I would not complain about anything unless I also proposed a solution.

So today I am going to point out flaws. But I'm also going to suggest fixes.

Here's my top-10 list of what's wrong, and ways to make it right.

1. The access default

Section 2.2 of the Access to Information Act reads: “ This Act is intended to complement and not replace existing procedures for access to government information and is not intended to limit in any way access to the type of government information that is normally available to the general public.”

Yet reporters and others who ask for information informally are told frequently they must submit an access request.

The solution: Make departments state in writing why a record cannot be released informally.  

2. Poor archiving of releases

Only one department, National Defence, has made an effort to digitize and catalogue a list of access releases on its website. Departments could save a lot of time and money by making such releases − even just the most popular ones − readily available to other requesters in digital format.

The solution: Have all departments and agencies emulate the Defence Department's practice.

3. Perpetual secrecy

The biggest holder of government documents is Library and Archives Canada. It is a treasure trove of historical records. I have mined it regularly for stories, including one on the RCMP Security Service file on Tommy Douglas, the former NDP leader. The 1,142-page dossier spanned nine volumes. Yet considerable portions of the file, which dated from as early as the 1930s, were withheld from release. Other such records are even more heavily censored. Should Canadian history indefinitely be held hostage to the whims of official secrecy?

The solution: Institute a declassification review system that would make virtually all records 50 years or older public, and most records 30 years or older public.

4. Convenient memory loss

Before the Access to Information Act took effect, officials estimated that departments might receive about 70,000 requests annually. But a quarter century later the most the system has ever received is 31,500 requests. Yet we often hear agencies say they are overwhelmed with applications. Is it really a surprise that the system is getting 30,000 requests 25 years after the law kicked in?

The solution: Do actual business case studies of projected requests in various departments and actually hire enough staff to process requests.

5. Delays due to departmental incompetence

Some departments simply don't make answering access requests a priority. And when they get an F from the information commissioner for poor performance, no one is demoted or fired, nor probably even scolded.

The solution: If a request to a department becomes a "deemed refusal" − that is, the legal deadline for answering it is missed − the department should lose the authority to impose any kind of discretionary exemptions on that request.

6. Delays due to consultations

Often delays in the system are due to the fact requested records contain material created by other departments. Those departments must therefore be consulted. However, there is little incentive for that secondary department to respond to the first one in a timely way. That means huge bottlenecks and pass-the-buck delays.

The solution: If a department fails to meet another department's deadline for consulting on a record, that department should lose any right to object to its release.

7. Delays in handling complaints

I complained about the aforementioned Tommy Douglas file. It took the information commissioner's office more than two years to handle the grievance. Not a single additional word of the 1,142-page file was released to me. This is not an isolated example. Many complaints still require months to resolve.

The solution: Increase the power of the information commissioner to investigate complaints, but also introduce service standards with strict timelines for completing these investigations.

8. Broad exemptions

Exemptions in the law used to exempt advice from officials (section 21) and material relating to international affairs and defence (section 15) are extremely broad. It means much information in the public interest is never released, even long after the issue is long gone.  

The solution: Narrow these exemptions, ensure there are tough injury tests and put time limits on them.

9. An outdated law

When the Access to Information Act took effect, few people had a desktop computer, let alone a BlackBerry. And the Internet was the domain of Cold War scientists and a few academics.

The solution: Introduce a draft bill in Parliament to update the law based on the thoughtful blueprints that already exist.

10. The five-dollar cheque hassle

In this day and age, filling out a five-dollar cheque to make an application is not exactly user-friendly. I have no objection in principle to a fee, but there has to be an easier way.

The solution: Keep the five-dollar fee, if government must, but allow people to submit requests electronically and pay by debit or credit card.