Access-to-information systems across Canada slowed by COVID-19

An international human rights organization is calling on all levels of government in Canada to continue answering access-to-information requests — and prioritize ones that relate to government accountability.

An international human rights organization is calling on all levels of government in Canada to continue answering access to information requests — and prioritize ones that relate to government accountability.

As governments across the country move to offer essential services only due to COVID-19, some are warning of delays in processing access to information requests, while others have stopped accepting new requests entirely.

It means the public has one less tool to understand how those in power are making decisions during a public health crisis.

“We've got, on the one hand, this incredible need for accountability and on the other hand, the institutions of accountability are operating well below their normal levels,” Toby Mendel, executive director of the Halifax-based Centre for Law and Democracy, said in an interview.

“So, it's a cocktail for lack of accountability and at this time, the importance of access to information is much, much greater than ever.”

The Access to Information Act allows applicants who pay $5 to ask for documents ranging from expense reports to briefing papers from government bodies in Canada. 

‘Canadians will expect a comprehensive picture'

Last week, the federal information commissioner urged federal agencies and departments to “take all reasonable measures to limit the impact on individuals' right to access.”

She followed it up with a statement on Thursday, reminding public bodies about their obligation to document decisions and actions, even with many people working from home.

“When the time comes, and it will, for a full accounting of the measures taken and the vast financial resources committed by the government during this emergency, Canadians will expect a comprehensive picture of the data, deliberations and policy decisions that determined the government's overall response to COVID-19,” commissioner Caroline Maynard wrote in the statement.

But some institutions in the already-clogged federal system are halting access to information requests indefinitely.

“The Access to Information and Privacy Office has decided to put all access and privacy requests on hold until the situation returns to normal,” Public Services and Procurement Canada wrote in an email to an applicant last week.

The email didn't say what part of the legislation allows it to put requests on hold indefinitely or how it would define “normal.” 

A spokesperson for Public Services and Procurement Canada didn't answer those questions, but said it “is prioritizing support for the government's response efforts, as well as critical services, including administering pay and pensions, and maintaining building safety as part of its service continuity.”

Toronto not accepting new requests

The access to information system is not just slowing down at the federal level.

CBC News surveyed five cities — Toronto, Ottawa, Halifax, Vancouver and Calgary — and found their approaches to access to information during COVID-19 vary.

Calgary, Ottawa and Vancouver say they are continuing to answer requests as usual during the pandemic while trying to minimize delays.

Toronto, Canada's largest city, says it has “temporarily suspended the intake of any new [freedom of information] requests” so staff can “prioritize COVID-19 response activities.”

“It is not currently feasible to deploy staff resources to conduct the searches necessary to locate records in order to respond to new requests,” City of Toronto spokesperson Beth Waldman wrote in an email.

Waldman said transparency and right to information are still a priority, citing the city's press briefings and “other communications to the public” during the pandemic. She didn't specify when the city will start accepting new requests again.

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Earlier this week, the Halifax Regional Municipality's website said it wasn't accepting new requests for information or routine disclosure requests, where people can request information that's already been released.

After CBC News asked why that was the case, the website was changed to say the municipality would accept requests, but applicants should expect delays “as municipal staff are working remotely and will not be in a position to search for records responsive to the request.”

Provinces are also handling the situation differently.

In New Brunswick, Office of the Ombudsman has granted an extension to public bodies, giving them until May 29 to complete active requests.

But in Newfoundland and Labrador, public bodies are getting indefinite extensions, according to a letter sent to an applicant in March.  

“The extension is approved for the time until government returns to normal operations,” the letter says, adding that the extension was approved by the province's access to information and privacy commissioner.

‘Scrutiny from outside makes things work better'

Mendel said public bodies have been too quick to say they can't handle processing requests.

“It is not appropriate for bodies to simply say we're not processing requests anymore,” Mendel said.

“We have laws across the country. They set rules for the processing of requests and those rules must either be formally limited by a legal process or they must be obeyed.”

While he said it may be reasonable for public bodies to restrict employees from going into offices and looking for physical files, he believes public institutions should prioritize requests that deal with government accountability, including those from journalists and opposition politicians.

“Scrutiny from outside makes things work better,” said Mendel.

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His organization has recently launched a tracker that examines how governments across the globe are handling access to information during a pandemic.

“In Brazil, for example, they sought to suspend the operation of the act and the Supreme Court said, ‘No that's not legitimate, that is a key accountability institution,'” Mendel said.

“You can see that when the proper rule of law system is being applied to these measures, it doesn't just allow governments to act as they might wish arbitrarily. “

Crisis could push access to information to modernize

Organizations that already struggled to respond to access to information requests will likely make access to information “an even lower priority” during a pandemic, according to Jason Woywada, executive director of the British Columbia Freedom of Information and Privacy Association.

“That does lead to concerns because those are the same institutions that likely require the highest degree of oversight to improve their processes and operations,” he said.

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But it also could push the country's access to information systems to modernize.

Woywada supports that, as long as it's done in a way that doesn't put privacy at risk.

Nova Scotia learned that the hard way in 2018, after it was forced to shut down its online freedom of information portal after a privacy breach. 

More than 7,000 documents, including hundreds with highly personal information, were downloaded in March 2018, but the breach wouldn't be detected until a month later.

“The key consideration there is making sure that security is maintained and making sure that the privacy is maintained for the information of the individuals that is being used online, that we aren't seeing a sudden increase in data breaches,” Woywada said.

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