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FOI Reform

Model Bill for Better Public Access in Ottawa

by Ken Rubin

Reversing Ottawa’s pro-secrecy first-generation Access To Information Act can be achieved through several key means in a newly entitled Public’s Right to Know Act.

Public Access as A Right and Freedom

Within a revised Act, public access becomes a constitutional right, not just a privilege. It’s preamble would recognize that access is part of the freedom of expression and liberty rights found in the Canadian Charter of Rights and Freedoms and the United Nations Declaration of Rights.

Pro-Active Disclosure and Fewer Restrictions

The Act’s purpose must also be exclusively devoted to the principle of disclosure rather than emphasizing secrecy as a prime focus. That dual past emphasis has meant starting with exemption code practices, gag orders, delays and avoidance of service.

Making pro-active disclosure codes the integral predominant feature of an information law means ensuring immediate and widespread release of data, especially health, safety, environment and consumer information. Better access service is then not just dependent on reacting to requests and not just periodic and limited.

This approach maximizes and mandates disclosures. It avoids having to try to meet a nearly impossible-to-achieve “public interest” legal test in order to override exemptions.

It means fewer hurdles because many unnecessary restrictions like policy advice are eliminated. Only a narrow range of specific and verifiable sensitive material may, upon review, be of sufficient significance to be withheld for a very short time.

Ending Special Privileges/Broadening Coverage

A pro-active disclosure code system would enable much broader private as well as public sector coverage. No public monies would go to those without disclosure service.

Such broader coverage puts everyone on the transparency track. No agency would be granted special exemptions and no corporate third parties would be given special powers to object to disclosures while remaining outside of disclosure codes.

Fair disclosure practices include a prior understanding that data submitted or gathered, save private personal information, is subject to access disclosure provisions.

Having an Arms-Length Public Access Authority

An arms-length Public Access Authority would be created to act as an accountable administrative instrument for facilitating and providing disclosure service practices.

Better Timing/Less Delays/Mandatory Record Keeping

Greater accountability means tighter consultation rules, and having enforceable powers in place to order prompt service. Agencies must provide quick access at low cost. There must be a duty, too, for agencies to keep up-to-date records or face penalties.

A Three Person Information Commission with Binding Order Powers

There is a need for a tougher appeal process where there is binding order powers to review and enforce pro-active disclosure practices. This is best done through a three-person Information Commission selected by Parliament. One Commissioner simply requesting voluntary compliance is no longer sufficient.

Broader Commission powers are required to ensure that records are created and quickly released, access to meetings is granted, whistle blowers data is not hidden and that those meeting their obligations to provide disclosure service are not mistreated.

A permanent parliamentary oversight committee

Parliament must be vigilant in its promotion of legislation with transparency clauses
and have a committee with oversight powers to advance disclosure practices.

Open Board and Commission Meetings

Providing public access to agency’s board and commission meetings as well as to their records offers the means for more immediate scrutiny. Other jurisdictions combine such a “sunshine” measure with record disclosure in their information laws.

A community and court review program

Those members of the public with fewer resources need to be able to have the means and support to challenge secrecy practices in the community and through the courts.

An international centre for freedom of information excellence

Canada once again can make a contribution to global transparency by housing an arms-length international centre for freedom of information excellence.

Ken Rubin, a long-time transparency advocate, has put such changes together in a Public’s Right To Know Act.

Read the Model Bill – The Public’s Right to Know (français)