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Canada's crisis in Access to Information [http://www.PoliticsWatch.com Updated 2:15 p.m., September 25, 2007]

PoliticsWatch received pages of documents from a federal Crown corporation in 2004 that had virtually all relevant information blacked out. Nearly three years later and the Office of the Information Commissioner has yet to provide a finding on the case. 

OTTAWA  — Canada's  Information Commissioner has confirmed a backlog of 532 complaints dating back to 2002.

In an exclusive interview with PoliticsWatch, Information Commissioner Robert Marleau described the backlog of outstanding complaints as "unacceptable." 

His office has  failed to provide rulings on 532  complaints. 

The backlog includes three complaints that have been with the office for over 5 years, 32 for three to four years, 43 complaints that have been with the office for three to four years, 164 for two to three years and 290 for one year to two years. 

In Canada, access to information applicants seeking recourse cannot  take a government institution to court to release documents before receiving a finding from the information commissioner and there is no time limit on how long an investigation can take. 

The backlog raises concerns about just how effective Canada's Access to Information Act is when it comes to obtaining information from government institutions and who do Canadians go to when the people whose responsibility it is to have information released under the act fail to get timely results.

"I think we are part of the problem," Marleau told PoliticsWatch. "I will admit that. I don't for a moment try to diminish the fact that we're part of the problem, but it is also a resources problem."

Marleau said resolving the case backlog is his "top priority" and he plans to go to Parliament "cap in hand" next year to ask for more money to rectify the long-term backlog. However, things may get worst, as he is also expecting an increase in cases due to additional government institutions being subject to access to information under the Federal Accountability Act. 

The information commissioner said his predecessor made Parliament aware of the backlog problem in 2005 and received more money in the 2005-06 budget to hire five more investigators. The new staff had "made a dent" in the backlog, according to Marleau. 

Since coming to power, the Conservative government has made no such increase in funding for the information commissioner's office despite significantly increasing the scope of the Access to Information Act. 

Marleau said he has already made management structure changes to further address the case backlog, but questioned whether the internal service standards set up in 2004-05 of 30 days for administrative complaints and 90 days for "more complex" complaints are "realistic." 

When asked if his office should have prescribed timelines to resolve complaints, Marleau said he wasn't sure that it should be written into the law because "each complaint has its own complexities." 

The information commissioner has made no secret of his reluctance to bring access to information complaints before the Federal Court. 

During an appearance before the House of Commons access to information, privacy and ethics committee last year, Marleau told MPs he preferred finding "common ground" and working on agreements with parties.

"I can tell you that I have and will have a bias against going to court," he said. "It usually costs the taxpayer a lot of money and the outcomes are typically unpredictable." 

Marleau stood by his position in his interview with PoliticsWatch when asked if there should be an alternative route for complainants to go to court before his office issues a finding. 

He said going to court isn't necessarily quicker than waiting for a ruling from his office and noted that the 78 cases out of 5,000 complaints that have not been resolved after three years represents a small number. 

Professor Amir Attaran, Canada Research Chair at Ottawa University, who has made headlines with his access to information research on human rights in Afghanistan, told PoliticsWatch he currently has an outstanding complaint regarding the Canadian International Development Agency that that has been with the information commissioner's office for over a year.

The law professor said he has used access to information and freedom of information in Canada, the U.S., UK and South Africa and said Canada's Access to Information system is "the worst" of the four countries. 

"The fundamental problem to me is that in this country you have to wait for the information commissioner to play out his role," he explained.  

"The information commissioner can take literally a year and quite a number of more days to do that during which time you are statutorally barred from going to court. In effect, you can get an information commissioner who thwarts the ability of cases to go to court."

"Oh my God," Bloc MP Carole Lavallée told PoliticsWatch in interview.

She was not aware that some complaints have been with the information commissioner's office for more than a year.

The Bloc MP said, however, she was "not surprised."

"We have to change the Access to Information Act," she said.  "We have to modernize it. We have to improve it."

Lavallée said setting timelines for the information commissioner to provide findings is "a good idea," but said she would like to hear the information commissioner's views on the concept before commenting further. 

NDP MP Pat Martin, who is a member of the access to information committee, has pushed for the committee to make recommendations for the removal of restrictions for applicants to sue the government for access to documents, including waiting for a ruling from the information commissioner. 

PoliticsWatch is among the 532 complainants who have waited more than a year for a finding from the information commissioner. 

On August 5, 2004, the federal Crown Corporation Defence Construction Canada (DCC) received a request for information about the clean up of sites on Canada's Distant Early Warning (DEW) Line. DCC still has not released  basic information on which Inuit firms have received subcontract work. 

DCC released pages of heavily redacted documents (see photo above)  in 2004 where Section 20 of the Access to Information Act was used over 80 times to sever information, including the exemption of company names. 

PoliticsWatch's complaint about heavily redacted documents has been with the information commissioner since January 2005. 

The Information Commissioner's office told PoliticsWatch its investigation continues. 

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