Administrative Discretion and the Access to Information Act: An 'Internal Law' on Open Government?

Abstract

Canada's Access to Information Act establishes a qualified right to government information for all Canadians. However, critics complain that some politically sensitive requests -- often filed by journalists or political parties -- are given differential treatment, with longer delays and tougher decisions on disclosure. An econometric analysis of 2,120 requests handled by Human Resources Development Canada in 1999-2001 suggests that the complaints have some merit. Requests that were identified as sensitive, or which come from the media or political parties, were found to have longer processing time, even after other considerations are accounted for. The probability that such requests would exceed statutory response times was also significantly higher. The analysis illustrates a broader point: That internal bureaucratic procedures play an important role in defining what the right to information means in practice. The analysis also highlights the need to give the federal Information Commisssioner better tools to deal with problems of delay.

Keywords: access to information, freedom of information, right to information, implementation, compliance, Canada