Sayonara to a bleak year for freedom of info

Only one ray of light in an otherwise withering time

Freedom-of-information (FOI) regimes across Canada withered in 2024, as courts and governments tightened the noose around openness and transparency.

Here are five key moments in a generally dismal year for FOI. Four of these developments made the filing of requests for government information feel more like a fool’s errand. One of them offered hope.

1. The high court put a clamp on cabinet secrecy

On Feb. 2, the Supreme Court of Canada upheld a decision by the Ontario government to withhold ministerial mandate letters as cabinet secrets. CBC had been denied the letters in 2018 after a request under the province’s freedom-of-information law. Many rulings and appeals later, the high court settled the matter. Secrecy won, hands down.

There was a hue and cry from journalists and others, but the outcome was not unexpected. The most incisive commentary was written by Mel Cappe and Yan Campagnolo. They argued the high court was correct in its ruling, but the reasons it set forth appeared to broaden the interpretation of cabinet secrets inappropriately. The far-reaching decision may result in cabinet-adjacent records being improperly withheld in future cases. Time will tell.

2. ‘Mandamus’ and court challenges

In June 2019, Canada’s information commissioner was given order-making power. Misbehaving departments now could be ordered to release documents. But such orders are not ‘binding,’ despite what the government may claim. Some departments simply ignore them, without penalty.

So the information commissioner has gone to court at least six times to ask a federal judge for a judicial order of ‘mandamus,’ to compel recalcitrant departments to act on her orders. National Defence has been the worst offender so far, and 2024 saw the pace quicken.

These cases drain legal resources on both sides, using public money better spent on improving the access-to-information system. Other departments have themselves gone to court to challenge her rulings, as is their legal right, but the net effect is to bog down the system in juridical squabbles.

3. Destruction and loss

Government records had a nasty habit of disappearing in the last year. The Canada Border Services Agency managed to lose 12,000 access-to-information requests, blaming the fiasco on technical troubles.

And key records related to the ArriveCan boondoggle somehow went AWOL, prompting the information commissioner to launch a probe. Even the best freedom-of-information system in the world can’t access documents that disappear into the ether.

4. Legislative backpedalling

In the fall, the Alberta government introduced a bill to protect more information from disclosure, including factual information related to its decisions. The province’s information commissioner called it an “erosion of access rights.”

In Nova Scotia’s election this year, Premier Tim Houston refused to commit to giving order-making power to the province’s information commissioner, which he had promised back in the 2021 election, when he first won government. Such a familiar story: opposition parties love freedom-of-information but get cold feet when in power.

At the federal level, the Access to Information Act fell off the political agenda altogether, despite the government’s promises of legislative reform.

5. Posting FOI documents

The federal government has long declined to post documents online that have been released to requesters under the Access to Information Act. They claim every such record would have to be translated into the other official language, and would have to be made accessible to those with disabilities, such as braille for the blind. That’s expensive and difficult.

In 2024, a non-government group launched Open By Default, which is doing the web posting that Ottawa refuses to undertake. They’ve made public about 48,000 such documents to date, and are expanding by the week.

Also in 2024, Library and Archives Canada began posting archival documents that it releases under the Access to Information Act. Because they’re archival, no translations or alternate formats are required by law. The archives expect to have 2.5 million pages posted by March 31, 2025.

These two initiatives were shafts of light in an otherwise dark year for freedom of information in Canada.

Other critics may have their own Top Five lists, but I doubt any would be less bleak than mine.

Looking ahead, we will see a federal election and change of government in 2025. As I have written before, general elections can sometimes bring meaningful reform to transparency laws. We’ll examine that possibility in a future column.