A law without penalties is like a gate without a fence, not merely useless but an insult to its purported purpose.
There are many reasons why Canada’s freedom of information laws are so badly failing to give citizens timely access to (notionally) public documents: reflexively defensive bureaucratic cultures; lack of resources; and excessive control by the executive branch of government. But one problem towers over them all – access to information laws don’t penalize civil servants who flout their provisions, whether by design, incompetence or indolence.
The lack of such penalties has defanged FOI laws, stripping them of their purpose of being a conduit of government records to the public. Instead, they have become a façade behind which governments can hide. The result is open defiance of both the spirit, and letter, of freedom of information legislation. The Globe’s Secret Canada investigation has shown that most governments routinely miss legislated deadlines for fulfilling FOI requests, often by ludicrous margins.
Access requests are a tool of the trade for journalists, of course, but the problems with the FOI system are a concern for all Canadians.
In the short term, the dysfunction of the system contributes to the culture of a bureaucracy that believes it needs to protect government from the incursions of citizens. In the longer run, the manifest inadequacies of FOI laws impoverish researchers’ understanding of history.
As Globe reporter Tom Cardoso wrote as part of the Secret Canada investigation, Saskatchewan’s Ministry of Corrections and Policing simply ignored the recommendation of that province’s information commissioner to release data from its correctional database.
That recommendation, legally speaking, was just a suggestion. The Saskatchewan government was free to disregard it, and did so.
Graham Steele, the Information and Privacy Commissioner of Nunavut, put his finger on this problem in a July, 2022 report, writing, “Given the lack of consequences for non-compliance, it is no wonder that some public bodies decide – consciously or subconsciously, directly or indirectly, by act or omission – to let ATIPP files gather dust.”
Mr. Steele’s diagnosis is spot-on: FOI laws need enforceable penalties, beyond current rules that largely focus on privacy breaches or the destruction of records. A tougher FOI law would zero in on the adherence to the fundamental goal of the legislation, namely the timely release of government documents.
One way to do this would be to change information commissioners’ recommendations into something more akin to a court order – legally binding, and disregarded at peril of being found in contempt. That approach would have the merit of simplicity, but it would ultimately depend on the capacity of governments to be shamed. Saskatchewan’s corrections and policing ministry isn’t a person that can be held in custody until they obey a legal order. And fines won’t be much of a deterrent to governments, with bottomless pockets.
A more compelling, if somewhat more radical, solution would be to hold individual civil servants accountable through fines for missing deadlines. There would need to be safeguards, of course, to avoid penalizing front-line workers while letting senior leadership off the hook.
One such safeguard would be to levy fines against the decision-maker behind an access delay, not the person carrying out the directive.
In addition, a due-diligence provision would be merited, which would take into consideration whether all best efforts were made.
The goal would not be to set loose a flood of fines, but instead to make it unavoidably clear to civil servants where their duty lies – opening up government to public scrutiny.
The ability of citizens to access government documents is not a favour granted by bureaucracies; that ability is a fundamental part of democratic governance and accountability. Decades of polite suggestions masquerading as laws have failed to make that clear to politicians and civil servants. An FOI law with teeth, and consequences, can reverse that failure.