Give info watchdog more bite, expert argues

Reprinted with permission from Southam Newspapers

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Monday, August 27, 2001

Jim Bronskill

Southam Newspapers

OTTAWA - The federal information watchdog should be given the power to order the release of records under the Access to Information Act, says a leading scholar on the law.

Alasdair Roberts, an expert on access rights, plans to tell a committee of MPs this week the Information Commissioner's authority must be beefed up to counter a "steady erosion" of the ombudsman's relations with federal agencies in recent years.

The ad-hoc committee, led by Liberal MP John Bryden, kicks off two days of hearings today on reform of the access law. Roberts, director of the Campbell Public Affairs Institute at Syracuse University in New York State, is slated to appear Wednesday. A copy of his presentation was released in advance.

The committee, which lacks official parliamentary standing, recently dropped several federal bureaucrats from its proposed witness list when the government refused to let them testify. The flareup was merely the latest testy episode involving the 18-year-old access law, which many believe is dated and inefficient.

The Access Act allows people who pay a $5 fee to request records held by federal departments and agencies. However, information dealing with such areas as personal information, security and defence or solicitor-client privilege, among others, are often exempt from disclosure.

Dissatisfied requesters can complain to Information Commissioner John Reid.

But he can only make recommendations on whether documents should be released.

As Roberts notes, "a more cumbersome process," involving appeal to the Federal Court of Canada, must be used to obtain a disclosure order.

The approach was built into the Access Act in part because officials believed it would encourage the commissioner to work informally with federal agencies to iron out disputes about disclosure of records, says Roberts.

However, the commissioner's lack of clout actually means the agencies have "weaker incentives" to negotiate with his office.

The commissioner should be "given the power to issue orders" - a move that would give him more bargaining power to mediate problematic cases, says Roberts, a Canadian who until recently taught at Queen's University in Kingston, Ont.

The Bryden hearings take place as a federal task force with a much larger staff and budget conducts a separate review of the access law. The task force review has come under fire from critics as an insiders' exercise.

Roberts plans to spend a good deal of his Wednesday appearance attacking the federal review as a secretive process weighted towards internal advice from bureaucrats.

The review, which began last year, is "neither balanced nor transparent," says his presentation. "It is hardly a surprise that the review exercise is now so discredited."

The federal government has defended the task force as sufficiently open, noting several round-table sessions have been held with academics, journalists, librarians and federal employees. In addition, a consultation paper invited public comment on reforms.

But some critics pointed to the government's move to control the witness list for the Bryden committee as further evidence the cabinet wants a firm grip on the access review process.

The federal edict means officials from the Privy Council Office, Treasury Board, the Justice Department, the National Archives and Crown corporations will not give testimony to the MPs.The government maintained they would not be protected by parliamentary privilege and that their statements could influence court proceedings on access issues.

Bryden said Monday he hopes the cabinet will reverse the decision. "I still am hopeful that the government will come around on this."

Mike Dagg, an Ottawa consultant on access-to-information issues, called the curtailment of the hearings "just terrible" and an indication "the bureaucrats have too much power" over the issues.

"That's the bottom line," said Dagg, also scheduled to appear before Bryden's committee Wednesday.

(Southam News)

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