Civil Litigation

Access to information system broken: Winkler

By AdvocateDaily.com Staff

Canada’s access to information regime is being crippled by underfunded government agencies and ineffective policing, Toronto lawyer and mediator Howard Winkler tells AdvocateDaily.com.

Federal legislation typically gives government bodies 30 days to respond to requests for information, and dissatisfied individuals are able to complain to the Office of the Privacy of Canada.

However, Winkler, principal and founder of Winkler Dispute Resolution, says the oversight body has no power to penalize offenders even when it finds violations of the law, and the Liberal government has fallen short on an election promise to fix the system.

“In my view, government agencies are abusing the system and the privacy commissioner lacks the will and resources to do anything about non-compliance. In effect there is no policing, so government bodies don’t have to take requests seriously,” he says.

“From my perspective, the election promises of a more transparent government paid nothing more than lip service to the idea without doing anything to ensure that the system actually works. Unfortunately, there has not been much exposure of the regime’s failure, and no public outrage about the resulting lack of transparency in decision-making,” Winkler adds.

But he hopes that may change after the Toronto Star recently ran a series of stories detailing the difficulties its reporters regularly run into while trying to gain access to government documents.

In one case, the newspaper was quoted a $32,000 bill by the Toronto Transit Commission to dig up documents on a controversial subway extension, while another reporter says he is still waiting on a response from the RCMP three years on from a request, even after paying an extra fee required by the police force.

Winkler says much of his freedom-of-information experience relates to federal bodies, including the Canada Revenue Agency (CRA). He says most requests start off on the wrong foot.

“The first thing agencies will do is to scrutinize the request for any technical deficiencies. Whether that’s because they’re overwhelmed by the workload or because of an institutional bias against compliance, it allows them to stop the 30-day clock from running,” Winkler explains.

He says a request he sent to the CRA in October 2015 on behalf of a client highlights the multifaceted problems with the administration of access to information.

Although the CRA places no time limits on client authorizations for representatives to act on their behalf in tax matters, Winkler says it takes a different approach to information requests, requiring a current authorization to confirm the client’s consent.

"There is no statutory requirement for these fresh authorizations," he says.

“In my view, the demand for a current authorization is nothing more than a delay tactic to avoid having to act on the access request in a timely way,” Winkler says. “Once the new authorization was provided, the new 30-day deadline for a response was the middle of December 2015."

However, after the 30 day period expired, Winkler says he received an extension request from the CRA asking for an extra 270 days to respond. Regarding the length of the extension as "taken late and abusive,” Winkler complained to the privacy commissioner in January 2016.

"All the privacy commissioner had to do was count to 30 to see that the extension sought by CRA was late and therefore invalid," he says.

Winkler says "incredibly" the commissioner took no steps to deal with the extension complaint until after the CRA finally delivered its response in November 2017, more than two years after the original request.

“The privacy commissioner ultimately responded in December 2017, acknowledging that the CRA’s extension request was improper. However, since the CRA had by then, in fact, responded, it considered the complaint against the CRA to be resolved, with no censure or criticism of CRA whatsoever,” he says.

“This office is supposed to be policing these agencies, but frankly, due to a lack of funding, no power to punish non-compliance and an apparent lack of will it’s failing miserably in the discharge of that responsibility.”

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