Foreign Affairs Minister John Baird is flouting demands from the federal information commissioner that his department stop charging fees for access-to-information requests. Information Commissioner Suzanne Legault said trading cash for information is not the way it’s supposed to work — but she has no plans to challenge the ruling in court.
“Fees must not constitute a barrier to access,” the commissioner wrote in her final ruling on the matter. “I recommend that the minister direct his officials to cease charging fees for search and preparation time of electronic records.”
But Joseph Lavoie, Baird’s spokesman, said the department has no intention of changing its fee structure for access requests.
“Until such time as the fee regime is modernized, the minister supports the department’s view that the correct interpretation of the regulations authorizes the current practice,” he said.
The minister’s refusal to stop charging access to information user fees raises serious questions about the potency of the Information Commissioner’s office, which appears powerless to enforce its will.
Ottawa journalist David Akin — who was working at the time for what is now Postmedia News — complained about ATIP user fees to the Information Commissioner’s office in 2009, and Legault began an investigation that was concluded last week.
Akin complained the Department of Foreign Affairs uses arbitrary and expensive fees as a barrier for accessing documents detailing government policies and decision-making.
His complaint came after the department began charging automatic fees in 2008 for requests that exceeded 500 pages of documents.
“There’s no justification for it,” said Akin. “They just picked the number out of thin air. The law says the default ought to be to make records available, not to find ways to prevent people from getting records.”
According to Akin, Foreign Affairs is the only federal department that charges these automatic user fees. Foreign Affairs claims other departments charge such fees as well.
In her ruling, Legault called the automatic fees “arbitrary” and “inconsistent with the aims” of the access law.
Despite the ruling, the information’s commissioner’s office is toothless in the face of Baird’s defiance, as it lacks the power to force the release of documents or change policy in any government department.
The next step for the complaint is Federal Court, where Legault’s ruling can be enforced after a judicial review. This process can take years and cost thousands of dollars, and Akin said he’s not certain he will pursue the case.
Legault also has the power to appeal, but she says there’s no point in going to court.
“In these types of cases it’s a very long waste of time to go through these investigations,” she said. “This is an administrative case, not a substantive case. Normally we don’t go to the court on issues like this, I don’t know if we even have recourse. And by the time we would get there, the issue would be moot.”
The case is a rare example of a minister openly defying the information commissioner’s authority.
NDP MP Olivia Chow said the commissioner should be given broader powers to punish government departments who lag on access requests.
“It gives the government a blank cheque,” Chow said. “A good government is open and accountable. If you’re not accountable, that means civil servants and politicians have all the power and the people have none.”
Duff Conacher, a spokesman for Democracy Watch and chair of the Open Government Coalition, said Baird’s actions show a “clear need” for reform and mirrored Chow’s statement that additional powers are needed.
“Violations of the Act mean nothing if there’s no prosecution,” he said. “They wouldn’t play these games if there were personal fines for ministers.”
Conacher said that the federal information commissioner must be given the same powers as counterparts in provinces such as Ontario and Quebec, where they can impose fines and punish ministers who fail to meet expectations under access to information laws.
The Conservatives have already held parliamentary hearings on updating the access to information regulations, but Legault doesn’t have much hope that the process will end in cheaper access for Canadians.
“My concern is that the government is going to revise these fees and . . . increase them,” she said. “My position has always been the higher fees act as a deterrent to requester’s rights. I’m not in favour of increasing the fees.”