Can Access to Information be fixed?

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The law that determines what secrets Canadians can pry out of their government hasn't been substantially overhauled since Pierre Trudeau introduced it in 1983, an era when Ronald Reagan was U.S. president and the Internet connected fewer than 600 computers.

As it nears its 30th anniversary, the Access to Information regime that was designed to furnish Canadians with government records on everything from the military to health has grown sluggish, unresponsive and obstructionist.

"I would like to see a really strong commitment to reverse this declining trend that we are seeing, because, in my view, we are really at rock bottom," said Suzanne Legault, the federal information commissioner. "We cannot afford to go down any more."

In an interview, Ms. Legault said she wants access legislation beefed up, including more power for her office, to help undo what she calls a decade of deterioration in the system.

Stephen Harper was supposed to make bold changes. He came to office promising a new era of transparency with major upgrades to access to information law.

But nearly five years later, many pledges remain unfulfilled. These include giving the commissioner's office the power to order the release of information and allowing the watchdog to read cabinet records to adjudicate complaints.

Mr. Harper's government has instead acquired a reputation for secrecy, erecting one roadblock after another to attempts to shed more light on government's inner workings, from the handling of Afghan prisoners to its battles with independent watchdogs.

Ms. Legault said she would like Ottawa to change the law to give her office the power to limit how much extra time civil servants can give themselves to deal with requests. Among other things, she wants to see cabinet documents when necessary and to have the authority to issue orders that would resolve disputes over search fees and delays.

But changes to access law alone wouldn't solve all problems for requesters, nearly 90 per cent of whom are not journalists but businesses, individuals and academics or other groups.

The handling of requests has become plagued by lengthy delays and eroding levels of disclosure as government departments debate what to release for months on end - and as they increasingly censor what's released.

Ms. Legault said she is optimistic processing times may improve, and that she detects goodwill on the part of the Conservatives to tackle delays in handling access requests.

In the past decade, the percentage of cases in which Ottawa discloses all the information requested has dropped to about 16 per cent from 40. In the past eight years, the percentage of cases in which federal officials complete requests within 30 days is down to 56 per cent from nearly 70.

"The current regime can only be characterized as a bureaucrat's dream," University of Ottawa law professor Michel Drapeau said. "It is seriously, if not fatally, flawed."

A spokeswoman for Justice Minister Rob Nicholson said the Tories have not proceeded with broader promised reforms to the access act because the Commons ethics committee has not produced a study on proposals that the Conservatives tabled. In 2006, however, the opposition-dominated committee instead urged the Tories simply to introduce a bill outlining what they want to change.

Alasdair Roberts, an access to information expert at Boston's Suffolk University Law School, said one problem is that incumbent governments, including the Liberal Party in years past, face no well-funded and organized pressure to improve the system.

Michael Dagg, an access researcher, said there's always been a culture of timidity inside government that makes bureaucrats in charge of requests wary of pushing too hard.

He said the minority government, which could fall at any time, breeds even more fear of creating upset - and requests are being subject to a cumbersome approval process as those stickhandling access requests encounter resistance to releasing information.

"They are in a conflict of interest when they have to please their bosses and also the requesters."

William Stanbury, a professor emeritus at the University of British Columbia, said Canada's commitment to releasing information falls short of other jurisdictions.

He noted that when U.S. President Barack Obama came to power, he directed U.S. civil servants to err on the side of disclosure when handling freedom of information requests.

"Shortly after he came to office, Obama issued a directive to the heads of all departments and agencies in the executive branch which said in part, 'The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails,'" Mr. Stanbury said.

The Obama directive continued: "The government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears."