¶ Canada's Failing Access to Information
This is Law Bites, a podcast with Michael Geist. Dear Prime Minister, We the undersigned organizations and individuals are writing to you to urge you to conduct a genuine and timely review of the Access to Information Act. The Access to Information Act requires the government to conduct a review every five years, with the next review due to commence by Wednesday, June 18, 2025.
We are of the view that the last review, which led to a report to Parliament in late 2022, suffered from serious structural flaws. As Toby notes, a key problem with the review was that it was led by the Treasury Board of Canada Secretariat, which represents a fundamental conflict of interest given that TBS itself is governed by the Access to Information Act.
Canada's outdated and discouragingly ineffective access to information system has languished for years to the frustration of many transparency advocates. As my colleague Matt Malone notes in the opening, past reviews of the law have raised conflict concerns and have not led to significant changes. One potential fix, or at least improvement, would be for government departments and agencies to make the full text of the records from access requests available to the public by default online.
That would create a huge new source of government transparency. Yet one of the barriers to that approach has been Canada's language laws, and a recent decision from the Commissioner for Official Languages may have killed the possibility altogether for the moment. Dean Beebe, an investigative journalist and freedom of information specialist, recently wrote about the case on his Substack. He joins me on the podcast to discuss both the case and how technology may provide a solution.
¶ How Canada's ATIP Process Works
if the government is open to some legislative reforms. Dean, welcome to the podcast. Oh, thanks, Michael. Glad to be here. Yeah, I'm really glad that you were able to join. You know, I have covered...
access to information issues at times on this podcast before, notably when Tom Cardoso from The Globe came on to talk about the Globe's Secret Canada initiative. And I can recall that part of the discussion... in that podcast, as well as some of their reporting, has focused on the prospect of full publication of records that are released under the Act, something that I think just about everybody recognizes would enhance public access, increase transparency, build in more efficiency.
into the system. But it hasn't happened yet, except for a few isolated departments or agencies, and a recent ruling from Canada's official language commissioner might even eliminate those initiatives and really end the prospect of others following suit.
I want to get into that ruling, but first, certainly not everybody who listens to this are familiar with the ATIP system. You've been a prodigious user of it over the years as a journalist. Can you start by walking through how the process functions at the federal...
level from the perspective of someone who might launch a request? Well, the law has been in place since 1983, and it gives every resident of Canada the right to... ask, request, formally request government information on whatever topic they're interested in. The guideline is it should take only 30 days to get a response out, but that's often extended by the institution to 60, 90 days. So it's not a quick process. It only costs $5.
other fees in 2016. So it's an inexpensive process. That $5 fee has been the same since 1983. So not even any inflationary increases. To the government's credit, they do have an online system where you don't have to mail a request form in with a stamp. You can actually do it online and pay for it online, your $5 fee. So that's the basics of it.
You know, it's not working as Parliament intended way back in 1983. The delays are enormous. It was especially a problem for journalists like myself, you know, waiting six months for a reply to a request on a... current public issue so that's a big problem there's also excessive uh you know censoring or exemptions applied to documents so it's it's turned out to be a kind of a difficult process and for that reason
Only about less than 5% of requests are filed by journalists. Journalists are pretty much giving up. They're just shrugging and saying, this isn't working for me anymore. So we've got a problem. It's supposed to be a public accountability tool, and it's not doing that, at least in the field that I know, which is journalism.
Yeah, no, and certainly some of my experience mirrors exactly what you just described. Actually, I just got a call just last week from one government department who were the analyst, ATIP analyst. wanted to know whether or not i was still interested in requests that were now they were some of them were four years old some were five years old and they hadn't even started really it was just something that was still of interest so those kinds of delays are
incredibly still not all that uncommon, unfortunately. Once a request is completed though, so hopefully it doesn't take those four to five years, hopefully you get in 30 days or whatever it happens to be. What does the requester typically get?
¶ Limited Public Access and Citizen Initiatives
What is made public as part of that request beyond what they directly have received? Well, what you get are hopefully the documents you asked for. Normally it's electronic, like there, you know, you could still get paper copies, but. The system has evolved so that most of the time it's delivered to your, well, it can be delivered to your email or through a web portal that the government runs.
that's what you're going to get you may have a lot of blacking out but you're going to get something um what's made public well none of that
normally is made public. Those documents don't reside anywhere on government websites except for a couple of exceptions which we'll talk about. What is made public is the wording of the request so there is a kind of a brief summary of what was requested on a government portal so you can see what others have asked for you can't see what they got but you can at least see what they asked for and then if it's of interest to you you can
then go on to informally request the same material which should get you material faster because it's already been processed for the first requester so that's that's about it you don't you know it's a it's a two-step process to acquire the documents that have been released to another requester. Yeah, no, that informal request system has its advantages, but some disadvantages, I suppose, as well. There have been some initiatives. I mentioned Secret Canada being an example.
Cardoso came on that have attempted to increase access or at least accessibility of some of the kinds of results. There's the open by default project as well. Can you talk a little bit about how. Some in the private sector, the journalism community have tried to enhance the system that the government's putting on offer. Yeah, I do admire these efforts, these projects, because they're really filling a gap that government itself should be taking care of.
So Secret Canada is typical. This is the Globe and Mail website that's launched by Tom Cordoso and others. These aren't documents that they list. These are actually the wording of requests, and they've done a comprehensive job of doing it federally, provincially, and municipally.
municipally. So you can see what others have requested and then go on to that informal request process. So it's useful. It's a very helpful thing for research, but it's not the real deal because you're not actually seeing the documents.
Open by default has gone much farther ahead and is publishing those original documents. And the way they do it is they... do these informal requests just like uh you and i could do but they do it in a very organized methodical way and so that anything that's posted that tells them what has been released, they will go on and make an informal request and put it in that database. And that database is searchable too. So it's a really a kind of a, in.
For people on the inside of the business, this is a big leap forward. They've done this. Now, it's tricky because Section 98 of the Access to Information Act protects...
public servants from liability in case they publish something that may offend some commercial entity or whatever, or criminal prosecution. So section 98 protects the public servants. It does not protect the people who run open by default so it's you have to have some protection against that liability it can't be sort of an individual trying to do this work by themselves you have to have institutional backing
So that if there is a problem, somebody sues you for posting a government release document, you are protected. So that's why open by default is not only a useful... project, but it's a kind of a slightly risky one and we have to admire them for taking on the risk. So that's the lay of the land. But for many years, people have wondered why apartments don't do in effect. what we are seeing open by default to it. We just simply post these entire records.
online once they've been completed. It would obviously increase access. It would decrease the risks of duplicate requests where people are able to get it rather than having to parse through the summaries that you mentioned. It would reduce costs for individuals. or reduced costs, certainly for government, given that they've stuck with the same $5 fee and now eliminated all the other fees. Yet very, very few departments do that. Do we have a sense of why they don't?
¶ Language Laws as a Publishing Barrier
Well, I mean, the fundamental reason is that the material is not in English and French. The material is not translated. And because of the Official Languages Act, anything a government publishes, that's the word in the legislation, It must be available in both official languages and the translation must be of equal quality. We are talking millions and millions of pages of material, and there's no way in the world this or any government could afford the cost translation.
as we currently do it. That's what departments say has tied their hands. They can't post because of this piece of legislation that forces them to do everything in both official languages. There are also privacy arguments that they make. Sometimes I'll make a request about something the government holds about me, and then...
There are concerns about whether the documents they release to me have information that's personal information that can't be shared to others. So that's also a consideration. But I think the languages issue is... the more important one. Okay. So that comes out of the official languages act. What does the ATI law itself say about the need to make records available? Yeah. It says that the requester, it can ask the institution.
to make that document available in the other official language. So you can request that if you... are a French speaker and you don't want to rely on the English version, you can request the institution translate it for you. It's not a slam dunk. The institution has to determine whether there's a public interest that warrants a translation. So it does happen. It's not common. In fact, it's quite rare. And it's also an additional cost to an institution. Now, one thing...
Just to be clear, 75 to 80% of documents are in English, are released, are created in English, and that's the language they're released in. So this would be largely an exercise about. an English to French translation when you invoke that part of the law. So there is a kind of safety valve there, but it's entirely at the discretion of the institution.
Okay, are there exceptions that are available there? The language is law on the one hand, now you've described what we've got as the baseline approach with respect to access to information. There is one exception, and that's history. So Library and Archives Canada is the custodian of our documentary history, and they have the obligation to make...
documentary records available in their original form. That's part of doing history. And so they have an out because... they are not obligated to produce in both French and English, except for their own operational records. If it's a record that has to do with the salaries of the staff at Library and Archives Canada, that's an operational record. And yes, that's bound by the Official Languages Act. But otherwise, they hold records from...
you know 260 institutions and they're they're free to make those public and they have indeed done this in the in the last year they've made a a stab at releasing records that were originally requested under the Access to Information Act were released in only one of the two official languages. but they are not legally bound to translate any of them because they're historical records. So that's the exception.
¶ The Language Commissioner's Ruling
Okay. Interesting. So we've got at least one entity that can rely on an exception, but we know there are at least a couple of other entities subject to access information rules that we're seeking to make this information available. And that's what sparked...
But I guess it's best described as the strategic complaint to the language commissioner by my colleague, Matt Malone. Can you talk a bit about what that complaint was about and what was more fundamentally, I think, what was the intent behind filing the complaint? Well, there are two institutions that started to post the full documents.
records they released under access to information on their websites the two documents the two institutions are the National Capital Commission and CBC National Capital Commission published Every document they released under access to information going back several years, they did not translate them. CBC has released a subgroup, a select number of...
records they released under Access to Information also did not translate them, and they were both available on their websites. Matt Malone, who is a transparency advocate, wondered why... uh all departments couldn't be doing this if just these two were able why not everybody so he decided to test the law and he made an official complaint to the languages commissioner about these
two websites, the National Capital Commission and the CBC, to see where it would go. It was a gamble, as he put it, and he had hoped that these two institutions would push back. would challenge the language commissioner's ruling. So Malone files a strategic complaint. They gamble, as you suggest, to essentially complain about the fact that there are full-text records being made available from various requests in only one language.
been a major supporter of trying to ensure that people do post these. He wanted to test this theory that's being used by the departments that they say they can't do this, generally speaking, because of... the official languages laws. So what is the commissioner rule? This analysis violates section four of the act, which requires whenever a. A federal institution publishes, publishes, that's the word in the legislation, any kind of communication. It must be in both official languages.
The translations must be of equal quality. That's important. The commissioner ruled that these two departments were not complying with Part 4 of the Act, and it was... a ruling released a couple of months ago and that's, that's the end of it. Okay. So having issued that ruling, they're not in compliance with the act. What options do the two entities, the NCC and the CBC face?
¶ Technology Solutions and Policy Stasis
I don't think either of them will challenge this ruling, but it does raise the question, artificial intelligence. Artificial intelligence is getting quite good at translation, as we know. It's not perfect, and it's... It produces some problematic translations, but it's getting very, very good. And I think the technology will eventually overtake this problem. Now, the commissioner, language commissioner.
uses the phrase equal quality, I think, to forestall a bad AI translation. I don't think the official languages commissioner wants, you know, kind of a half-assed. translation of documents to be declared acceptable so you know so we're in a kind of state where the technology is almost there and the commissioner is not satisfied yet. And so I think the next step will be wherever AI can take us in the translation world. Okay. Well, so technology...
Could arguably should be able to solve the issue of ensuring that an individual can can get the documents in the language of their choice. Yeah. but I guess it does raise the question is, is the ability for someone to make that request and put it back to the department saying, listen, I see you've posted this in say English. I'd like a French language version. Why isn't.
that good enough because because i i take it from the decision that the commissioner saying no you can't do that you have to proactively publish In both languages, you can't simply address requests sort of after the fact, after this has been posted in one language or the other. Yeah. The sticking point is it's at the discretion of the institution.
the person who requests that might be turned down, and is that appropriate under the Official Languages Act? I think that's the problem, that if it was mandatory, I think there might be a difference, but a mandatory system would... could get very expensive very quickly there is another solution though and i know that the information commissioner's office is exploring this right now in the past institutions have had reading rooms so they would uh you know
Justice or whatever, whatever department would create a physical reading room where they would keep copies of previously released requests and anybody could go in and view them. The information commissioner is exploring this idea of a virtual reading room. So it would... kind of sidestep the translation issue if somehow you could find a legal framework for establishing a online reading room maybe
you know, maybe with a registration process or something like that, that would mimic the reading rooms we've had in the past where there was no requirement to translate documents. So that's kind of an interesting possibility to get around this problem. as well. Okay. So we've got a couple of different possibilities, AI doing the translating or creating virtual reading rooms as a mechanism of providing access without necessarily needing to translate.
In the meantime, is there any sense that either one of these entities, the NCC or the CBC, might seek to appeal or challenge, or have they simply removed the content altogether? I think practically speaking, there's no chance of an appeal. Well, certainly the NCC has complied, so I think that's a dead end there. CBC is still a live matter because they have their website still up.
I contacted them today, in fact, and they still have not told me whether they're going to challenge this or going to abide by the ruling and take those documents down or translate them, which is not really on. So I just don't think that this case is going to lead to a resolution. I think any resolution is going to have to come from beyond this case.
And I take it as well, just to put a bow on it, that given this particular ruling, that is likely to put to an end any other department that might have been considering doing something similar, having seen how this played out. I think it's a shot across the bow and I don't think any other departments will be, if any had plans for this, I'm sure they're now frozen and we'll see how this problem evolves. But I just don't think we're going to see any.
any other departments climb on board. Yeah. Okay. I guess, why don't we just close, close with this. I mean, you've identified a couple of interesting technological. solutions to address this issue that seem to offer at least the promise of getting at what the intent presumably is, that people should be able to access materials in the language of their choice and do so in a manner that provides...
equal quality or close to equal quality in a roughly equivalent fashion, that may require the legislative reform. And so I guess that then begs this last question. This has already been... somewhat discouraging conversation about the state of access to information. And just to layer it on a little bit further, that suggests that we're going to require some form of legislative reform. What is the likelihood of seeing that? Because, you know, the government that...
Governments, successive governments have talked about change, but change has been relatively slow in coming. Well, on the access to information file, I don't think we are going to see major changes. I just don't think it's really on. this government's radar right now i you know there's a review process
that was launched in June. I just think it's pro forma. It's a box ticking exercise. I don't think there's the political appetite with this government to make serious reforms. I also, you know, anything touching on language is a hot potato.
politically dangerous thing to do. Like if any government is seen to be diminishing the rights of speakers of the other language, then it's going to be... politicians are going to avoid that as as much as they can so i i think we're in a bit of a stasis right now and it's really too bad because you know it's never more important especially with big projects coming up that We should have better transparency, not worse transparency.
No, I think you're right. Well, certainly your sub stack is fantastic. I will link to it in the show notes and it's doing a great job of at least bringing these issues to light. It's where I learned of this particular decision. And while it does.
It's not particularly promising at this point in time. It's good to know there are people out there continuing to bang the drum for saying there's just no reason not to do a better job around access and transparency. In fact, if anything, it's more important than ever. Well, thanks, Michael, and thanks for your podcast. You're also somebody who keeps their eyes opened on these files, so I appreciate it. That's the Law Bites podcast for this week.
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Credit information for clips featured in this podcast can be found in the show notes at michaelgeist.ca. I'm Michael Geist. Thanks for listening and see you next time.