In Saskatchewan, Patricia Elliott and Emily Eaton are members of an exclusive club. In recent years, they have both filed requests for records under freedom of information law, been denied, appealed those denials and won – only to be told the public institutions holding the documents would not comply.
Dr. Elliott had requested government documents about a 2016 oil spill into the North Saskatchewan river, and Dr. Eaton had asked for records about fossil fuel research funding at the University of Regina. They both filed complaints when they were denied access to the records, and both times the province’s Office of the Information and Privacy Commissioner – the body responsible for hearing freedom of information disputes – decided the information should be released.
But, in both cases, public institutions simply ignored the Information Commissioner’s decision.
Freedom of information laws are intended to promote transparency by allowing people to request documents from public institutions. The laws require institutions to disclose the requested information, with limited exceptions.
Saskatchewan is one of six Canadian jurisdictions where the Information Commissioner lacks the power to compel the disclosure of documents that have been withheld improperly. Instead, the commissioner is limited to making recommendations, which public institutions can follow or disregard as they wish.
The consequence, according to experts, is that institutions are emboldened to disregard freedom of information laws. If a public body refuses to comply, a requester’s only recourse is to go to court, a process known as a judicial review, which often requires a lawyer.
Dr. Elliott and Dr. Eaton were both eventually forced to do just that. They say the process ultimately cost them each thousands of dollars in legal fees.
“It’s very rare that a private citizen has the kind of financial resources to actually pursue something like this through the courts,” said Dr. Eaton, a geography and environmental studies professor at the University of Regina. Both she and Dr. Elliott, a professor of journalism at the First Nations University of Canada, paid their legal bills in part by using GoFundMe, a website for soliciting donations.
“It renders those freedom of information laws irrelevant,” Dr. Eaton said. “It means that it’s very easy for an authority to simply disregard what has been democratically agreed on as the proper disclosure and transparency of public institutions.”
Dr. Elliott and Dr. Eaton both eventually obtained the documents they requested. In Dr. Elliott’s case, the government turned over the documents shortly before her case was to be heard. Dr. Eaton, meanwhile, had to best the University of Regina in court.
The province’s Information Commissioner, Ron Kruzeniski, said in an interview he has encountered public bodies “digging in their heels,” and that he often wonders whether they would respond the same way if he had additional powers.
In Canada, dissatisfied users of the freedom of information system can file appeals to their jurisdiction’s information commissioner (or, in some cases, ombudsperson). These appeals are usually resolved informally, through some form of mediation. Inevitably, some disputes require more formal, tribunal-like processes, resulting in final written decisions.
Commissioners in eight jurisdictions – British Columbia, Alberta, Ontario, Quebec, Prince Edward Island, Newfoundland and Labrador, the Northwest Territories and the federal government – have the power to order public bodies to unredact documents and disclose records. (Technically, Newfoundland’s commissioner does not have order-making power, but the province’s unique laws ensure the commissioner’s recommendations are functionally equivalent to orders.)
Information watchdogs in the remaining six jurisdictions – Saskatchewan, Manitoba, New Brunswick, Nova Scotia, Yukon and Nunavut – can only make recommendations.
Earlier this summer, The Globe and Mail launched Secret Canada, an investigation into the country’s broken freedom of information systems. The examination revealed that public bodies routinely break these laws by overusing redactions and failing to meet legislated timelines, and that they face few – if any – consequences for ignoring the precedents set by courts and information commissioners.
“I would certainly like to see some enhanced powers,” Mr. Kruzeniski said. “The provincial government at the moment is not reviewing freedom of information legislation. If they were, I certainly would be encouraging them to look at and think about order-making power.”
Freedom of information laws are built on the idea that people are entitled to information held by public institutions. Given that, order-making powers are essential, Mr. Kruzeniski said. “I think it’s good for our province, and good for democracy.”
As it stands, public bodies in Saskatchewan disregard, in part or in full, more than half the decisions Mr. Kruzeniski makes, according to the Office of the Information and Privacy Commissioner’s latest annual report. In the 2022-23 fiscal year, the office saw “full compliance” with its reports 47 per cent of the time. (In Nova Scotia, that number was 48 per cent; in Nunavut, it was 75 per cent; and, in Manitoba, 97 per cent. In Yukon, no reports in 2022-23 met with full compliance.)
The province is also unique for the percentage of cases the Information Commissioner is unable to mediate or resolve informally, rather than issuing a final written report. In most jurisdictions, only a handful of cases – 10 to 30 per cent – require final reports. In Saskatchewan, the proportion in 2022-23 was 56 per cent.
Gary Dickson, a retired lawyer, former member of the Legislative Assembly in Alberta and Mr. Kruzeniski’s predecessor as Saskatchewan’s information commissioner, said that the large proportion of cases going to full review in the province is an indication of how poorly public bodies understand the province’s access laws.
“The three most sophisticated access regimes are Ontario, B.C. and Alberta,” he said. “Mediation is a lot easier when there’s a broader understanding of the purpose of the legislation, right? And that’s been a slower challenge to address in Saskatchewan.”
This lack of understanding can be seen in the Information Commissioner’s reviews, too.
A Globe and Mail review of 105 Saskatchewan freedom of information disputes from 2022 found 79 cases where the Information Commissioner disagreed at least in part with how a public institution had handled a freedom of information request. For instance, an institution may have taken too long to process a request, not conducted a reasonable search, overly redacted documents or applied an inappropriate fee for processing documents.
Put another way, the commissioner found that public bodies in Saskatchewan, including the government, had skirted the law in 75 per cent of the cases that reached him on appeal that year.
In a statement, Saskatchewan government spokesperson Noel Busse said the province is not currently considering changes to its freedom of information laws, and that Saskatchewan is “committed to supporting the public’s right to obtain access to public records and to the protection of privacy.”
Mr. Dickson and Mr. Kruzeniski both noted that the province has never had a public review of its two main information laws, which were passed in 1992 and 1993. (One applies to the provincial government, and the other governs other public institutions in the province.) Public reviews should be conducted every five years, Mr. Kruzeniski said.
To Mr. Dickson, order-making power is “an essential component of a robust access to information regime.” There’s a stark contrast between Alberta – where he is from – and Saskatchewan, he explained.
“Going from a jurisdiction that had a commissioner with order-making power to a province that only has ombudsman powers, there’s an absolute, marked difference in terms of compliance with one over the other,” he said.
“If there isn’t a huge investment in the machinery of open government, of well-trained people and properly resourced FOI co-ordinators and the commissioner’s office, that beautiful statute is kind of a dead letter.”
Tom Cardoso
Robyn Doolittle