Canada’s freedom of information law should require government institutions to disclose details about a risk of significant harm to public health and safety or environmental protection, says the federal information watchdog.

Information commissioner Caroline Maynard made the recommendation as part of a submission to the government, which is reviewing the access to information process, including the federal Access to Information Act.

Treasury Board president Jean-Yves Duclos had asked Maynard for her input on how to improve the information disclosure regime, which is supposed to ensure the government is transparent and accountable to Canadians.

In a document detailing her “observations and recommendations” that was announced Jan. 11, Maynard pointed out that six provincial access to information laws require the disclosure of government information related to public health or environmental protection.

The federal law “as it is currently written, does not adequately deal with the public’s right to information in cases where there is a potential of significant risk of harm to its health or safety,” she wrote.

The commissioner suggested a “public interest override," that would recognize “the importance of public access to critical, urgent information held by the government, and the latter’s obligation to provide this information without delay.”

This provision, reads Maynard's recommendation, would require “government institutions to disclose information about a risk of significant harm to public health, public safety or the protection of the environment.”

Six provinces with public interest disclosure

The six provinces with freedom to information laws containing these kinds of public interest provisions are British Columbia, Alberta, Ontario, Nova Scotia, Prince Edward Island and Newfoundland and Labrador.

Commissioner Caroline Maynard said Canada's access-to-information regime could “soon be beyond repair if certain serious problems are not resolved.” #cdnpoli

B.C.'s law, for example, states that “the head of a public body must, without delay, disclose to the public ... information about a risk of significant harm to the environment or to the health or safety of the public or a group of people, or the disclosure of which is, for any other reason, clearly in the public interest.”

The laws in four of the other provinces echo similar language, while Ontario's law says the government must, “as soon as practicable,” disclose any record if it has “reasonable and probable grounds” to believe it's in the public interest to do so, and it “reveals a grave environmental, health or safety hazard to the public.”

None of the six laws explicitly state whether harm to the environment includes the risks related to climate change, nor does Maynard's submission.

Asked whether the commissioner would group climate-related risks with such a provision, James Ellard, director of public affairs at the Office of the Information Commissioner, said the recommendation was focused on facilitating “greater flexibility regarding information in the public interest” than what is currently in the federal law.

“This early proposal may be further defined, as needed, in the context of the review process,” he said. Ellard added that his office was not, at this point, privy to any proposed amendments the government might be open to consider.

Treasury Board spokesperson Alain Belle-Isle said the government was “committed to ensuring transparency and access to government information for all Canadians,” and would be reviewing the commissioner’s recent submission “carefully in the context of the views of Canadians on a wide range of issues relating to access to information.”

“The access to information review will examine all feedback received during the course of the review, as well as input and recommendations from previous reports," said Belle-Isle, as well as the process surrounding the government's prior updates to the access regime, contained in Bill C-58.

The government's changes included the proactive publication of some documents, as well as regular reviews every five years, with the first one launched last June.

Access regime could 'soon be beyond repair'

The recommendation is one of many the commissioner submitted covering a wide range of changes, including the need to beef up access to information offices with more resources, as well as broadening the law’s coverage while limiting the government’s ability to exclude information.

Many changes are needed to protect the "integrity" of the access regime, said Maynard, which allows Canadians to pay a $5 fee to request government records, that are then reviewed by analysts before being publicly released.

Requests for information often take years to be fulfilled, while disclosures often include pages that have been entirely redacted. The COVID-19 pandemic has made things worse, said Maynard.

The access regime, said the commissioner, could “soon be beyond repair if certain serious problems are not resolved," such as "inadequate leadership" and no "clear guidelines" on transparency, and the timely declassification of records.

Carl Meyer / Local Journalism Initiative / Canada’s National Observer

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