Info czar rejects call for transparency
Information commissioner stands by decision to withhold data about her office
Canada’s information commissioner, Caroline Maynard, wields legal authority to order federal departments to release information they’ve withheld from requesters who are seeking it under the Access to Information Act.
Well, sort of.
Maynard was given that order-making power in 2019, part of a suite of Liberal amendments to the Act. Her authority, though, is diluted.
Unlike a Federal Court judge, Maynard cannot enforce her orders. If a department thumbs its nose at her, and some have, the best she can do is go to Federal Court and ask the judge to back her up. She’s done that a few times.
It’s an imperfect system, but better than the old one, where she could only recommend release of information (or, rarely, go to court asking for a judge’s order). Maynard argued back in 2019 that her orders needed more legal heft, but she was ignored.
Now University of Ottawa law professor Matt Malone has exposed a new wrinkle in Canada’s weak order-making regime: Maynard’s own office is not subject to orders – the only federal institution immune from this sanction.
Malone used the Act to request data from the Office of the Information Commissioner of Canada that would show how long its investigations into access complaints take. He was able to do so because Maynard’s office is subject to the Act.
For dubious legal reasons, the office refused to provide key data, so Malone filed a complaint. And because Maynard can’t investigate her own office, the complaint went to an ad hoc independent investigator, legal expert Anne Bertrand, based in Fredericton.
Bertrand delivered her final report this week, rejecting Maynard’s decision to withhold the data from Malone. Bertrand determined that the office had misinterpreted the law, and she recommended release of everything.
But Maynard’s office has rejected Bertrand’s recommendation, and continues to withhold the data from Malone. And because Bertrand has no order-making power, the information commissioner’s rejection is final.
You can read Bertrand’s report here:
Malone does have the option of going to Federal Court for a review, but his uOttawa clinic (the Canadian Internet Policy and Public Interest Clinic, or CIPPIC) is already “overloaded,” he says.
He says the dead end for his request is emblematic of the access-to-information regime in Canada.
“You know Canada’s transparency laws are in trouble when even the transparency watchdog will not release records after a review finds disclosure is justified,” Malone says.
Without that key data from the information commissioner, the ability of researchers like Malone to measure wait times for resolving complaints is hobbled. And whose interest does that serve?