The department of secrets

The Chretien cabinet is using fears of terrorism to further restrict  public access to information

Reprinted with permission from the Ottawa Citizen

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Thursday, October 18, 2001

Professor Alasdair Roberts, for the Ottawa Citizen

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 terrorism.

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.


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