department of secrets
The Chretien cabinet is using fears of terrorism to further
restrict public access to information
Reprinted with permission from the Ottawa
Thursday, October 18, 2001
Professor Alasdair Roberts, for the Ottawa
The anti-terrorism bill introduced in Parliament on Monday contained
something that the Minister of Justice described as "a
consequential amendment" to federal law -- a minor piece of
housekeeping, a little fillip in the larger project of combatting
The amendment gives the Minister of Justice the untrammelled
discretion to suspend rights granted by the Access to Information Act.
When the anti-terrorism bill becomes law, the Minister of Justice
will have the authority to issue a certificate prohibiting the
disclosure of information for the purpose of protecting international
relations or national defence or security. Any information covered by
the certificate is entirely excluded from the Access to Information Act.
This means that citizens will have no effective right to complain to
the Information Commissioner about abuses of the new power. The
Information Commissioner will have no authority to inspect records to
determine whether this new power is being reasonably applied. Nor will
the Federal Court have authority under the law to review the Minister of
Justice's decision. Canadians will not even have a right of access to
the certificate itself.
Should the government protect sensitive information relating to
international relations, national defence or security? Absolutely.
That's why the Access to Information Act already contains exemptions for
that kind of information, as well as records relating to police
investigations and court proceedings. A study prepared for the Minister
of Justice in August concluded that "current access exemptions
provide powerful and sufficient tools" for protecting national
security and preventing harm to international relations.
However, the use of existing exemptions by Ministers is subject to
review by the Information Commissioner and the Federal Court. It's this
prospect of independent review that disturbs the government. The
Minister of Justice does not want to be accountable to the Commissioner
or the Court for her decision to suspend the right to information.
This isn't the first time that the government has struggled to escape
independent review of its decisions. The Access to Information Act
already permits the government to avoid independent review of decisions
to deny access to Cabinet records. Earlier this year, a British jurist
called this part of our access law deplorable, observing that it allowed
the government to withhold documents "without any justification
beyond a simple certification that they are some kind of state
secret." Another study recently commissioned by the Minister of
Justice said that the government had "failed to articulate any
sound reason" for denying independent review of decisions to
withhold Cabinet records.
At least the Cabinet records provision has a limit: it does not apply
to records that are more than twenty years old. There's no such limit on
the power that will now be given to the Minister of Justice.
New Zealand's Official Information Act gives a similar, but more
narrowly defined, power to its Minister of Justice. But New Zealand's
ombudsman still retains authority to ask the Minister of Justice to
reconsider his decision. Even so, a report by the New Zealand Law Reform
Commission called the provision "difficult to justify" and
urged its repeal.
This new proposal is best understood as part of a longer-term effort
by the government to weaken the Access to Information Act. Over the past
eight years, it has transferred many key functions -- including air
traffic control and airport security -- to organizations that aren't
subject to the law at all. The government has also engaged the
Information Commissioner in a long and complicated court battle aimed at
restricting the Commissioner's right to inspect records held within the
Prime Minister's Office and other ministers' offices. Next month, the
government will issue a report that will likely propose fee increases
aimed at deterring large or complex requests for information. The
anti-terrorism bill presents an opportunity to restrict information
rights even further.
The need for firm action against terrorism is obvious to all of us.
It is obvious to the Information Commissioner, and it is obvious to the
Federal Court of Canada. The war on terrorism does not require us to
sacrifice the principle of independent review.
Alasdair Roberts is Director of the Campbell Public Affairs
Institute of Maxwell School at Syracuse University. He is also a fellow
of the School of Policy Studies at Queen's University.