Friday, February 26, 2016

And the Supreme Court of Canada next?

Dear Ms Legault:

You are to be applauded for recognizing one of several serious flaws in public access to federal government information:

http://www.nationalobserver.com/2016/02/25/news/bring-ministerial-offices-under-access-law-ensure-accountability-watchdog

While there are no Philadelphia lawyers at CyberSmokeBlog, it's very limited understanding is Paragraph 70(3)(a) of The Privacy Act governs what the Office of the federal Information Commissioner can and cannot do.

Said provision mandates after 20-years cabinet documents can no longer be excluded from application under the Access to Information Act. Problem is, of course, after 20-years those Ministers responsible for crafting the legislation are more than likely long gone spending their winters in Florida, Mexico or the Caribbean on their platinum-gilded taxpayer pensions. So where's the timeliness, accountability and transparency? There is none.

However, the problem is even larger than you've documented it's called the Supreme Court of Canada. Recently, the Washington Post ran an excellent/outstanding article documenting the outside, off the bench activities of the United States highest court Justices. Cf.:

https://www.washingtonpost.com/news/wonk/wp/2016/02/19/
scalia-died-at-a-secluded-texas-ranch-heres-where-else-the-supreme-court-justices-go-when-they-leave-town/?

The detailed findings of the article were only possible because the annual self-disclosure forms of the Justices are a matter of public record. Not so here. In fact, one of CSB's readers/contributors/researchers has complained in the past about the difficulty obtaining copies of speeches/addresses given by SCC Justices when requested from the Court's Executive Legal Officers. Even CyberSmokeBlog has experienced first hand on a couple occasions reasonable information requests simply being ignored.

Upon posting the aforementioned study, in a Postscript CSB concluded:

Much of the grist for the American article came from the Justices' annual financial disclosure forms, which report income earned from investments and other sources, spousal income, financial liabilities and reimbursements from outside groups for justices' food transportation, lodging and entertainment.

So the question for you, Ms Legault, becomes are similar self-disclosure forms for Supreme Court of Canada Justices exempt from Access to Information requests thus remaining hidden behind the high, cloistered walls of the Supreme Court of Canada? A quick online check seemed to suggest they indeed are - anyone know for sure?

Sincerely,
Clare L. Pieuk
Blogmaster
CyberSmokeBlog

Copies:

Federal Minister of Justice
Jody.Wilson-Raybould@parl.gc.ca

William C. Brooks
Commissioner
Office of the Commissioner for Federal Judicial Affairs Canada
jacs-snm@fja-cmf.gc.ca

Canadian Judicial Council
nsabourin@judicom.ca
jlaporte@judicom.ca

Gib van Ert
media@scc-csc.ca

Rocco Galati
rocco@direct.com
Bring ministerial offices under access law to ensure accountability: watchdog

The Canadian Press in News, Politics | February 25th 2016

By Jim Bronskill
Suzanne Legault appears before parliamentary committee. Images from parliamentary website.

The offices of cabinet ministers must be brought under the Access to Information Act to ensure proper accountability, the federal information watchdog says.

Information commissioner Suzanne Legault told MPs the move is one of the "bold steps" needed to usher the access law into the 21st century.

"Having a modern access law would assist Canadians in exercising their right to know," Legault said Thursday. "It would also facilitate the creation of a government culture that is open by default."

The Access to Information Act, which allows people who pay a $5 fee to ask for federal records, has changed little since taking effect in 1983. In addition, many institutions — including ministerial offices — are not covered by the act.

A House of Commons committee is reviewing the law following the Liberal government's commitment to overhaul the system.

Last year, Legault tabled a special report with 85 recommendations to improve the law and how it is administered. She called for changes to ensure exceptions in the Act protect only what is strictly necessary as well as tighter timelines for the processing of requests.

Legault, an ombudsman for users of the law, said Thursday her office now spends 40 per cent of its time dealing with administrative complaints from the public about government delays in responding to requests.

Government agencies are supposed to answer requests within 30 days or provide valid reasons why more time is needed.

Legault pointed to one case in which she had to go all the way to the Federal Court of Appeal to obtain a decision that a 1,110-day extension was unreasonable.

Currently, she often goes to court because she lacks powers to order agencies to comply with the access law. Any rewrite of the law should give the information commissioner order-making authority to ensure more timely processing of requests, she said.

If she had possessed such powers, the matter of the 1,110-day extension "would have been settled within days," Legault said.

"It really solves a lot of those issues."

Sixty-eight per cent of all countries that have implemented an access law in the last 10 years feature an order-making model, she noted. In Canada, British Columbia, Alberta, Ontario, Quebec and P.E.I. have those powers.

Another recommendation from Legault would require the government to ensure major decisions are documented with a record trail.

New Democrat MP Daniel Blaikie asked Legault how the changes could balance the need for transparency with the right of public officials to deliberate on issues and "think on paper."

"When I'm in a meeting, for instance, I want to make private notes," he said. "I may have things that I don't want on the record forever — they're fleeting ideas."

Legault noted there are protections in the law that shield sensitive information related to national security, legal advice and numerous other matters.

But the commissioner, whose own office is covered by the law, recalled how a doodle she made of a horse was released to a requester under the act.

"It's fine, it just gets disclosed. I don't mind," she said.

"People just have to grow into this culture of disclosure at a certain point."

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