Access to Information in the Public Sector

AuthorBarbara Von Tigerstrom
Access to information (or freedom of information) laws give people a
right to access government information. They are complemented by pro-
visions — usually within the same piece of legislation that give people
a right to access information about themselves and that limit how their
personal information can be collected, used, and disclosed by public
bodies; these provisions are the focus of Chapter 4. Together, these are
referred to as “access to information and privacy” (ATIP) or “freedom
of information and privacy” (FOIP) laws and they are found throughout
Canada at the federal level and in ever y province and territory.
Although the concept of freedom of information has broad appeal
and a long history,1 the process of formalizing a legal r ight of access has
often been slow and met with resistance.2 These laws are a relatively
recent development in Canada, which had historically followed the
British tradition of “administrative secrecy.”3 In contrast, Sweden has
had a constitutional right of access to official documents for hundreds
of years and a practice of routinely making public documents available
to the media.4 In the United States, legislation and executive orders
1 Ben Worthy, The Politics of Freedom of Information (Ma nchester: Manchester
University Pre ss, 2017) at 4–8.
2 See, for example, ibid at 16, noting re sistance in the United Ki ngdom through-
out the 1970s, 1980s, and 1990s.
3 Donald C Rowat, “How Much Adm inistrative Secrec y?” (1965) 31 Canadian
Journal of Economics & Politica l Science 479. See also Worthy, above note 1 at 17.
4 Rowat, above note 3 at 488 –89.
Access to Infor mation in the Public Sector 141
gradually expanded access in the 1950s and 60s, and the Free dom of
Information Act was passed in 1966.5 In Canada, the federal Access
to Information Act was passed in 1982 and came into force in 1983.6
Within the next decade or so, all provinces and territories adopted sim-
ilar leg islation.7 The Ontario legislation, and indi rectly that of a number
of other jurisdictions, was influenced by the report of the Commission
on Freedom of Information and Individual Privacy (known as the Wil-
liams Commission).8
The purposes of the federal AT IA, a s originally enacted, are des cribed
as follows:
to provide a right of access to i nformation in records under t he con-
trol of a government institution in accordance with t he principles
that government information should be available to the public, t hat
necessar y exceptions to the right of access should be limited and
specific and that decisions on the disclosure of government informa-
tion should be reviewed independently of government.9
Similar provis ions appear in most of the provinci al and territorial FOIP
statutes. These purposes have been an important guide to interpreting
the legislation. In order to understand them fully, we need to consider
why “government information should be available to the public.” The
Supreme Court of Canada (SCC) has stated that access to information
“can increase transparency in government, contribute to an informed
public, and enhance an open and democratic society.10 In another SCC
decision, La Forest J explained t hat the “overarching purpose” of access
to information legislation is “to facilitate democracy,” which it does by
helping to ensure “first, that citizens have the information required to
participate meaningfully in the democratic process, and secondly, that
5 Freedom of Information Ac t, 5 USC 552. See Worthy, above note 1 at 135–38;
Rowat, above note 3 at 486 –87.
6 RSC 1985, c A-1 [original ly enacted as Schedule I to SC 1980- 81-82-83, c 111]
7 Nova Scot ia’s Freedom of Information Act, SNS 1977, c 10, enacted in 1977, actually
predated the feder al Act. It was replaced by the cur rent Freedom of Information
and Protection of Pr ivacy Act, SNS 1993, c 5 [NS FOIPPA], which came int o force in
8 Ontario, Commis sion on Freedom of Information and Indiv idual Privacy, Public
Government for P rivate People: The Report of the Commission on Freedo m of Infor-
mation and Indiv idual Privacy (Toronto: Ministry of Gover nment Services, 1980)
[Williams Commission Report].
9 ATIA, above not e 6, s 2(2)(a), formerly s 2(1).
10 Ontario (P ublic Safety and Security) v Criminal Lawyers’ Associ ation, 2010 SCC 23
at para 1 [Criminal Lawyers’ Associat ion], McLachlin CJ a nd Abella J.
politicians and bureaucrats remain accountable to the citizenry.11 A
general purpose statement added to the federal AT IA in 2019 expressly
recognizes these underlying goals, stating that the Act’s purpose “is to
enhance the accountability and transparency of federal in stitutions in
order to promote an open and democratic society and to enable public
debate on the conduct of those institutions.”12
There is widespread agreement on the importance of access to infor-
mation to the functioning of democracy. Without information about the
deliberations, plans, and act ivities of government, people cannot engage
in informed debate or effectively exercise their democratic rights. The
connection with these rights is such that access to information can be
said to underlie political rights, notably the right to vote, guaranteed in
international human rights instruments and the Canadian Charter of
Rights and Freedoms.13 Access to information can also protect a range of
other fundamental rights and interests, such as personal or economic
se cu rity.14 The right to freedom of expression gu aranteed in section 2(b)
of the Charter, which itself helps to foster an open, democratic society, is
also connected to access r ights. Without a right of access to information,
citizens cannot engage in informed debate about public matters and the
value of free expression is di minished. As one scholar put it, “[o]ur right
to talk is an empty one unless we have something to talk about.”15
Such arguments have gained some lim ited traction in the courts. In
the Criminal Lawyers’ Association case, the SCC rejected a Charter chal-
lenge to the Ontario Freedom of Information and Protection of Privacy Act
(FOIPPA), but did recognize that a right of acces s could be derived from
section 2(b) in some circumstances.16 The Act provides for a number of
exemptions from the right of access, but furt her provides that cer-
tain exemptions do not apply “where a compelling public interest
11 Dagg v Canad a (Minister of Finance), [1997] 2 SCR 403 at para 61 [Dagg].
12 ATIA , above note 6, s 2(1), as amended by An Act to ame nd the Access to Informa-
tion Act and the Pr ivacy Act and to make conseque ntial amendments to o ther Acts,
SC 2019, c 18, s 2 [Act amending AT IA and PA].
13 Canadian Charte r of Rights and Freedoms, Part I of the Constitution Act, 1982,
being Schedule B to t he Canada Act 1982 (UK), 1982, c 11 [Charter]. See Vincent
Kazmier ski, “Something to Talk About: Is There a Char ter Right to Access
Government In formation?” (2009) 31 Dalhousie Law Jour nal 351 at 383–92
[Kazmierski, “ Something to Talk About”]; Alasdair Rober ts, “Structural Plura l-
ism and the Ri ght to Information” (2001) 51 University of Toronto Law Journal
243 at 262 [Roberts, “Structur al Pluralism”].
14 Robert s, “Structural Plural ism,” ibid at 256–58.
15 Kazmiersk i, “Something to Talk About,” above note 13 at 379. See also Robert s,
“Structu ral Pluralism,” ibid at 261– 62.
16 Criminal Lawyers’ Associ ation, above note 10.

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