Access to Info plan includes guidance on historical records, no legislative changes

OTTAWA — The Liberal government has outlined a variety of steps intended to make the much-criticized Access to Information system work better, including new guidance on disclosure of historical records.

But the new plan makes it clear any changes to the federal access law will have to wait until after the next formal review, set to begin a year from now.

For a $5 fee, people can use the Access to Information Act to request government records ranging from emails and memos to reports and expense claims.

Federal agencies are supposed to respond within 30 days or provide valid reasons why more time is needed to process a request.

The access law has not been fully updated since its introduction 41 years ago. Many users complain of lengthy delays as well as exemptions in the law that result in heavily blacked-out documents or blanket denials in response to their applications.

Civil society groups, journalists and members of the public who took part in the last federal review of the regime called for expansion of the law, removal of loopholes, stricter timelines for responses and more resources to make the system work.

In addition, a report last June from a House of Commons committee made 38 recommendations to overhaul the access regime, including an amendment to the law that would allow for fines or penalties when agencies miss deadlines for answering requests.

Many records held by Library and Archives Canada, though often decades old, are still vetted through the Access to Information law. Information related to national security, defence, international affairs, personal matters, legal advice and a host of other areas might be stripped from the documents prior to disclosure.

In an April 2022 report, information commissioner Caroline Maynard, an ombudsman for requesters, highlighted the lack of a framework across government for declassifying sensitive records.

The federal plan on Access to Information modernization, released Wednesday by Treasury Board President Anita Anand, is part of a broader “trust and transparency strategy.”

The access plan focuses on administrative changes aimed at making the federal processing of requests more efficient and timely.

Among the measures is policy guidance the government says will allow for a more consistent approach to the review and potential disclosure of historical records.

The guidance identifies recommended time thresholds to help federal institutions apply exemptions under the law.

It says the recommended time thresholds are intended to encourage institutions “to consider the passage of time as a relevant factor” when exercising discretion on whether to release records of historical value to Canadians.

Under the new guidance, for example, the time threshold is 50 years for the exemption that allows institutions to withhold records based on their sensitivity related to defence, international affairs or security.

Officials are now encouraged to consider a threshold of 30 years when applying the exemption in the law related to historical records about federal-provincial affairs.

Anand said Wednesday the guidance amounts to “a major change from previous practice.”

“The baseline has changed,” she said in an interview. “In other words, the baseline now is this information will be released after the time period has passed unless there is an overarching reason not to release it.”

The 50-year threshold related to defence, international affairs and security is “far too long a period,” said Alan Barnes, a former federal intelligence official who is now a senior fellow of the Centre for Security, Intelligence and Defence Studies at Carleton University.

Before introduction of the access law in 1983, general government policy was to release records older than 30 years, he said.

Barnes added that officials could interpret the new guidelines to mean that consideration of the age of records should come into play only when they have reached the threshold, but not before — meaning fewer records might be released.

Given the long-standing reluctance of departments to disclose historical records, “it is likely, in my view, that departments will use these new guidelines to avoid using their discretion on records more recent than the thresholds,” Barnes said.

Other measures in the plan include additional guidance for those who process requests, more training and adoption of modern digital tools.

The plan says latest federal review of the access law, set to begin by June of next year, will give the government a chance to explore ways to strengthen the legislation.

“We are going to review the act in whole beginning in 2025,” Anand said.

“The bottom line is that transparency is a top priority and we will keep working on it.”

This report by The Canadian Press was first published May 29, 2024.

Jim Bronskill, The Canadian Press