“Freedom” of Information in Canada: Implications for Historical Research

There is a rich and untapped source for historical research that is available to any scholar who is willing to navigate the quagmire of freedom of information legislation (foi) in Canada.² foi can be used to access records relating to hospitals, mental health institutions, prisons, the military, foreign policy, crown corporations, state agencies, policy development, policing, and much more. Historical records are also not only to be found within archives. Government departments often keep records for decades. In British Columbia (BC), for instance, the Attorney General’s office has kept records on the Human Rights Branch and Commission dating from the 1970s. The only way to access these documents was through foi. Developing familiarity with foi can therefore open a variety of new avenues for research. And yet it is easy to understand why most historians avoid using foi.³ Provincial and federal law is increasingly more effective at concealing government records than providing access.⁴ The law restricts access to records as mundane as cabinet ministers’ speeches or grants to community groups. This is not an isolated development. Rather, it is part of a growing trend towards excessive government secrecy.

Origins of FOI

Access to information is a legal right to review documents that are not already in the public realm. More than 120 countries around the world have foi laws. “The foi phenomenon is not an end in itself,” explain Andrew Flinn and Harriet Jones:

but is intended to help make government institutions more accountable in an age when not only are they holding vast amounts of data and information, but technology gives us an unprecedented ability to identify, interrogate and analyze the data and information effectively. … [foi] is now generally viewed as a standard tool for increasing transparency and reducing corruption, and is widely perceived to be a basic right in any healthy, democratic system of government.⁵

foi laws proliferated across the globe beginning in the 1960s, although some countries, such as the United Kingdom, did not introduce legislation until 2000.⁶ In Canada, until the 1960s, access to public records was made available on an ad hoc basis. There was, however, an informal policy to release documents after 35 years, with the notable exception of military and diplomatic records.⁷ When the federal Access to Information Act (atia) was enacted into law in 1983, Canada was only the eighth country in the world to have foi legislation. The provinces and territories soon followed suit; Prince Edward Island was the last to enact legislation, in 2002.⁸ Provincial legislation covers a host of municipal and local state agencies, although many of Canada’s large municipalities also have foi policies and coordinators. A few jurisdictions, including the federal government, have separate statutes for information relating to individuals (Privacy Act) and government documents (atia). Several provincial statutes, unlike the federal atia, are also paramount to other statutes. Canada has not, unlike France and New Zealand, enshrined a right to access to information in its constitution.

Freedom of information legislation attempts to strike a difficult balance. In the past, governments arbitrarily denied access to public documents, and the judiciary tended to endorse almost any Ministerial objection to access.⁹ The state, of course, has a legitimate interest and, in fact, an obligation to protect information. However, every foi statute in Canada is built upon the assumption that citizens have a right to access public documents. The BC Freedom of Information and Protection of Personal Privacy Act, for example, was founded on the principle of “giving the public a right of access to records,” and the federal atia “provides a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public.”¹⁰ As Canada’s Federal Court has ruled in a recent decision on the atia: “Parliament considers access to information in Canada and document retention as essential components of citizens’ right to government information.”¹¹ Access to information, according to the Court, is integral to our...