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How access to federal documents system fails to deliver | John L. Hill

Tuesday, October 10, 2023 @ 9:11 AM | By John L. Hill


John L. Hill %>
John L. Hill
All federal, provincial or municipal governments emphasize their commitment to transparency in decision-making. To ensure the open and accessible availability of documents, information commissions have been set up to ensure Canadians are able to access government records. Such material could be crucial to future historians researching individuals and institutions that shaped our society. 

The system has broken down, or in some cases, it just doesn’t deliver. Law360 Canada’s Karunjit Singh reported on Oct. 4, “Federal, provincial and territorial information commissioners have signed a joint resolution aimed at enhancing access to government information for Canadians.” The news item concerned a press release by the Office of the Information Commissioner of Canada.

The news article quoted from the release: “Freedom of information regimes across Canada have faced persistent challenges in delivering timely responses to access to information requests, underscoring the need to implement alternative and efficient mechanisms for providing access to records, including through proactive disclosure.”

The Correctional Service of Canada (CSC) is a federal agency operating Canada’s prisons. It is one of Canada’s least transparent organizations. An adequate description of its operations is summarized by the observation that prison walls and fences are as much to keep the public out as they are to keep the prisoners in. In writing my book, Pine Box Parole, I thought including excerpts from CSC documents would be useful. To that end, I applied for all prison records concerning my deceased client, Terry Fitzsimmons, that may have been recorded in CSC files. It was the start of a tortuous journey.

The initial response was that all files pertaining to Kingston Penitentiary, where Fitzsimmons was held, were destroyed when the prison was closed. That explanation seemed illogical. I paid the fee and requested the CSC provide me with any records that may still exist. CSC responded on July 8, 2022, saying it would require 180 days to complete the request for information. I complained to the federal privacy commissioner when the 180-day period ended with still no return. During the investigation, CSC stated there were about 3,334 pages of responsive records, 1,283 of which required vetting by hand in its office. CSC proposed it could complete the vetting process by April 12, 2024.

The privacy commissioner responded by writing, “The complainant has now been waiting over a year for a response to their access request. Any additional delay that is taken to respond to this request is another day by which the complainant’s rights of access are being denied. This lack of responsiveness is in clear contravention of CSC’s obligations under the Act and undermines the credibility of the access system.”

The privacy commissioner held that the delay requested for vetting was unreasonable given the amount of time already elapsed since the privacy request was received. On Sept. 19, 2023, the information commissioner of Canada issued her final report: “The complaint is well founded.” She required that the CSC turn over the files no later than the 36th business day following the signing of the final report. She noted that the CSC had confirmed that it would comply. This would indicate that CSC would not be applying to the Federal Court for judicial review of the decision.

Although I am pleased with the decision, I have to contrast the CSC response with the speed with which the state of Texas acted on my privacy request to allow me access to all correspondence that then-Gov. George W. Bush received regarding a Canadian on death row, Stanley Faulder. The research was in connection with the same book I was writing that dealt with the Fitzsimmons story. Within a month, I was offered access to 3,521 letters and emails from around the world delivered to the governor’s office, including letters of support for the execution from Canadian MPs Art Hanger and Jay Hill that had not been reported in the Canadian press. The response included an apology that the COVID-19 pandemic has slowed their processing time.

In the resolution referenced in the Law360 Canada article, the regulators observed that relevant systems across Canada are frequently unable to provide timely responses to access to information requests and that previous calls for legislative reform, including a 2019 joint resolution, had largely failed in bringing about any concrete improvements. If the Canadian government is committed to transparency, let’s hope they follow up on the regulators’ call for reform. Actions speak louder than words.
 
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.   

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